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LEGAL  DOCTRINE  AND  SOCIAL  PROGRESS 


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LEGAL  DOCTRINE 

AND 

SOCIAL  PROGRESS 


BY 

FRANK  PARSONS,  Ph.D. 

Member  of  the  Massachusetts  bar,  author  of  "  Parsons'  Morse  on  Banks 

and  Banking,"  and  other  legal  works,  lecturer  for  many  years  in 

the  Boston  University  Law  School,  author  of  "The  Railways, 

the  Trusts  and  the  People,"  "The  Heart  of  the  Railroad 

Problem,"  " The  Story  of  New  Zealand, "  "The  World's 

Best  Books,"    "The  Mastery  of  the  Mind,"    "Great 

Movements  of  the  Nineteenth  Century,"  "The 

City  for  the  People,"   "The  New  Political 

Economy,"  "  Choosing  a  Vocation,"  etc 


NEW  YORK 

B.  W.   HUEBSCH 

1911 


Copyright,  1911,  by 
B.  W.  HUEBSCH 


PRINTED  IN  O.  8.  A. 


i 


TO  MY  REVERED  AND  HONORED  FRIEND, 

JUSTICE  OLIVER  WENDELL  HOLMES, 

WHOSE  FREEDOM  FROM  OVER-DEVOTION  TO  TECHNI- 
CALITIES AND  WORSHIP  OF  PRECEDENT  IS  DESERVING 
OF  ALL  PRAISE,  AND  WHOSE  PROFOUND  KNOWLEDGE, 
BREADTH  OF  VIEW  AND  LIBERAL  USE  OF  COMMON 
SENSE  IN  APPLYING  THE  PRINCIPLES  OF  THE  LAW  TO 
ACCOMPLISH  JUSTICE  ON  THE  FACTS  OF  EACH  CASE, 
ENTITLE  HIS  JUDGMENTS,  AS  A  MEMBER  OF  THE  SU- 
PREME COURT  OF  MASSACHUSETTS  AND  NOW  OF  THE 
UNITED  STATES  SUPREME  COURT,  TO  THE  RESPECT 
AND  ADMIRATION  OF  THE  BENCH,  THE  BAR  AND 
THE  PUBLIC,  THIS  BOOK  IS  AFFECTIONATELY  AND 
RESPECTFULLY  DEDICATED 


PEEFACE 

The  stupendous  social  problems  of  this  age 
force  us  to  face  the  question — shall  remedy  be 
found  by  evolution  or  revolution?  The  answer 
to  this  question  is  of  momentous  importance. 
It  determines  one's  attitude  toward  the  prob- 
lems and  marks  the  essential  nature  of  his  ac- 
tivities. If  he  believes  that  revolution  is  "the 
way  out"  he  will  very  likely  be  unsympathetic 
with  reforms,  and  impatient  of  "palliative 
measures."  He  will  clothe  his  ideals  with 
abundance  of  detail  and  refuse  to  pave  the 
road  or  even  blaze  the  trail  by  which  they  must 
be  reached.  He  complacently  postpones  all 
progress  to  that  joyful  day  when  his  perfect 
ideal  will  be  realized  in  one  grand  coup  d'etat. 
The  man  on  the  other  hand  who  believes  in  re- 
forms and  evolutionary  methods  of  social  prog- 
ress will  do  what  he  can  each  day  to  gain  an 
inch  toward  things  as  they  ought  to  be. 

A  man  is  an  evolutionist  or  a  revolutionist  in 
the  matter  of  pursuing  his  ideal,  according  to 
the  view  he  takes  of  the  law,  the  constitution 
and  chart  of  present  civic  institutions.    If  he 

7 


8  PEEFACB 

considers  the  law  fundamentally  wrong  and  our 
present  society  utterly  hopeless,  he  will  be  a 
revolutionist.  If  he  canonizes  the  law  of  the 
past,  making  it  the  guide  and  measure  of  all 
future  law,  and  so  enslaving  society  to  the 
corpses  of  its  dead,  he  will  be  a  reactionary. 
If,  however,  he  estimates  the  law  on  a  utilita- 
rian basis,  and  without  any  bondage  to  prece- 
dent accepts  it  as  a  power  for  progress  to  be 
developed  rather  than  cast  aside,  he  will  be  a 
social  evolutionist. 

It  was  to  this  school  of  thought  that  the 
writer  of  this  book  belonged.  He  was  a  re- 
former, cherishing  the  highest  of  ideals  yet 
always  demanding  of  himself  a  reason  for  his 
faith  and  a  proof  of  its  practicability.  He  felt 
that  a  better  and  truer  conception  of  the  law 
was  one  of  the  great  needs  of  the  day  and  that 
it  would  help  the  cause  of  social  progress.  His 
wide  knowledge  of  the  law,  his  work  as  a  legal 
writer,  and  his  experience  as  an  educator, 
coupled  with  his  national  services  in  behalf  of 
true  democracy  qualified  him  peculiarly  to 
write  upon  this  subject. 

For  several  years  before  his  death  Professor 
Parsons  accumulated  notes  and  developed 
plans  for  the  present  volume,  but  its  actual 
writing  was  not  begun  until  the  days  of  his 
final  illness. 


PREFACB  y 

To  the  reader  who  has  noted  the  prevailing 
lack  of  any  dynamic  conception  of  the  law,  or 
any  adequate  understanding  of  it  as  an  evolu- 
tionary force,  or  who  sees  wrongs  and  social 
barbarism  entrenched  behind  the  courts  and 
constitutions  that  are  inelastic,  and  that  try  to 
confine  the  State  to  police  functions,  this  book 
should  bring  a  hope  of  better  things.  It  reaches 
fundamentals.  The  path  of  democratic  prog- 
ress is  not  over  a  morass,  but  over  rock. 

Ealph  Albbrtson. 

Boston,  February  1, 1911. 


CONTENTS 

PAGE 

I.  THE  LAW  AS  A  FORM  OF  CONTROL  ...  17 
But  one  of  various  forms. — The  object  of  law  is 
happiness. — Leading  means  of  control  contrasted. 
— Law  too  costly  to  be  used  to  enforce  the  whole 
moral  law. — The  law  draws  the  line  at  the  aver- 
age man. — The  law  waits  for  crystallized  public 
opinion. — The  law  enters  only  where  proof  is 
possible. — The  form  of  control  depends  on  prac- 
ticability.— The  law  may  go  too  far. 

II.  THE  LAW  AS  AN  EXPRESSION  OF  THE  IN- 
TERESTS OF  THE  GOVERNING  AUTHOR- 
ITY        26 

The  real  power  not  always  indicated  by  the  form 
of  government. — The  law  in  a  real  democracy. — 
Collective  ability  must  be  employed. — The  bene- 
fits of  a  true  democracy. 

in.    FIXED  LAW  IS  BUT  THE  CRYSTALLIZATIONS 

OF  ANCIENT  GROWTHS 33 

International  law. — Domestic  law. — The  common 
law. — Equity. — The  common  law  too  rigid. — 
Equity  requires  flexibility. 

IV.  THE  LAW  IS  A  LrVE,  CHANGING  AND  AD- 
JUSTABLE INSTRUMENT 39 

The  law  "in  the  breast  of  the  judge"  is  flexible. — 
Over  a  vast  field  the  effect  of  the  law  is  deter- 
mined absolutely  by  the  attitude  of  the  judge. — 
Different  principles  of  common  law  lead  to  en- 

xi 


Xii  CONTENTS 

PAGE 
actment  of  contradictory  statutes. — "Principles 
of  construction"  affect  application  of  written 
law. — Judges  disagree. — Final  and  most  far- 
reaching  decisions  are  disputed. — Different 
courts  apply  the  law  with  directly  opposite  re- 
sults.— The  reason  and  letter  of  the  law  may  be 
contradictory. — A  still  greater  chance  for  flexi- 
bility.— Courts  sometimes  annul  the  reason  and 
purpose  of  the  law. — Courts  may  declare  law 
void  on  certain  grounds. — Court  prevents  legis- 
lature from  permitting  cities  to  sell  coal. — Jus- 
tice Holmes's  dissenting  opinion. — 'Personal  at- 
titude of  judges  has  great  significance. — Courts 
more  powerful  than  legislatures. — Two  views  of 
judicial  control  over  legislation. — A  precedent 
for  almost  anything  and  a  way  to  set  aside  al- 
most any  precedent. 

V.  FUNDAMENTAL  RIGHTS  AND  RESPONSIBIL- 
ITIES AS  DEFINED  BY  THE  LAW  ARE 
BASED  UPON  REASON  AND  THE  NATURE 

OF  THINGS 68 

Primary  general  rights  of  persons. — The  princi- 
ple of  proportionality. — Secondary  rights  of  per- 
sons.— Special  rights  of  persons. — Rights  of  arti- 
ficial persons. — Rights  of  things. — Public  and 
private  wrongs. — Civil  and  criminal  law. — Re- 
dress of  private  wrongs. — Contributory  negli- 
gence.— Plaintiff  must  have  "clean  hands." — The 
grounds  of  liability. — Expressed  contracts. — Im- 
plied contracts. — Control. — A  defined  realm  of 
responsibility. — The  fellow  servant  doctrine. — 
Legal  and  moral  responsibility  not  coterminous. 
— Act  may  be  morally  right  yet  criminal. — The 
basis  of  criminal  liability. — A  free  act. — A  sound 
mind. — Foresight  not  essential  to  liability. — 
Omissions  are  indictable. — The  basis  of  liability 


CONTENTS  X1U 

PAGE 

for  tort. — The  key  to  legal  liability. — The 
formal  liabilities  have  changed. — And  may 
change  again. — Only  proximate  consequences 
considered  in  recovering  damages. 

VI.  THE  FUNCTIONS  AND  OBJECTS  OP  THE 
LAW  CONTEMPLATE  A  MUCH  LARGER 
SCOPE  OF  USEFULNESS  THAN  GOVERN- 
MENTS AS  YET  PERFORM 95 

Service. — Development. — Regulation. — Methods  of 
relief. — Restraint. — The  emphasis  changes. — 
Restraint  becomes  gradually  less  important. — 
The  law  changes  in  its  very  fundamentals. — 
These  changes  follow  and  obey  industrial  de- 
velopment.— Industrial  changes  of  to-day. — Co- 
operation superseding  competition. — The  law 
responds  to  this  movement. — Public  ownership 
increasing. — Basic  causes  for  public  ownership. 
— Growth  of  industrial  cooperation. — Govern- 
ment already  performs  many  lines  of  cooperative 
service. — The  trusts  are  a  great  cooperation. — 
The  law  should  adapt  itself  quickly  to  modern 
industry. — Trusts  are  here  to  stay. — They  are  of 
great  economic  value. — But  they  must  be  strictly 
regulated  by  law. — Cooperation  will  make  great 
changes  in  the  law. — The  law  and  society  act 
and  react  on  each  other. — The  law  has  growa 
and  must  grow. — Changes  must  promote  the 
happiness  of  this  generation. — The  object  of  the 
law  demands  certain  changes  now. 

VII.  CURRENT  REFORM  MOVEMENTS  DEMAND 

AND  ARE  MAKING  CHANGES  IN  THE  LAW  120 
Direct     legislation. — Popular     nominations. — Pro- 
portional  representation. — Voting  preferences. — 
Civil   service  reform. — Home   rule   for   cities. — 
Non-partisan  city  elections. — Public  ownership. — 


XIV  CONTENTS 

PAGE 

Diffusion  of  wealth. — A  form  of  "single  tax." — 
Control  of  corporations. — Public  ownership  of 
monopolies. — Government  insurance,  loans  and 
banking. — Direct  election  of  U.  S.  Senators. — 
Curb  the  Speaker. — Work  for  the  unemployed. 
— The  right  to  be  born  well. — The  rights  of 
motherhood. — Rights  of  childhood. — A  better 
criminology  coming. — The  old  methods  of  pun- 
ishment ineffective. — Reformation  the  goal. — Bet- 
ter opportunities  for  immigrants. — Government 
should  clean  up  the  slums. — Take  the  profit  out 
of  the  saloon. — The  Gothenburg  system. — Train 
the  children  for  the  work  of  life. — Do  not 
specialize  too  young. — But  learn  to  do  something. 
— Part  time  schools  are  practical. — Expert  vo- 
cational advice  should  be  provided. — 'Civic  train- 
ing in  the  public  schools. — Still  more  emphatic 
is  the  duty  of  improving  our  general  system  of 
education. — The  state  should  prepare  every 
child  for  a  useful  life. 

VIII.    CERTAIN  CHANGES  ARE   NEEDED  NOW  IN 

OUR  SYSTEM  OF  LEGAL  PRACTICE     .     .   152 

One  action  for  all  rights. — Technicalities  should  be 
minimized. — Simplify  the  law. — Revise  law  of 
evidence  to  facilitate  justice. — Provide  for  intel- 
ligence in  jurors. — Give  better  treatment  to  wit- 
nesses.— Redress  for  false  accusation. — Expense 
and  delays  in  securing  justice  should  be  abol- 
ished. 

IX.    ESSENTIAL    PRINCIPLES    TO    WHICH    THE 

LAW  SHOULD  ALWAYS  CONFORM     .      .     .160 
The  fundamental  problem  of  law  and  government. 
— An  ideal  not  yet  reached. — The  way  to  reach 
the  ideal  state.— Individuals  must  progress  in 
advance  of  institutions. — Good  and  evil  mixed 


CONTENTS  XV 

PAGE 

in  every  man. — The  need  of  selective  intelligence. 
— The  principle  of  proportionality. — Is  essential 
to  justice. — Permeates  the  whole  law. — Limits 
the  taxing  power,  and  even  the  legislature. — 
Proportionality  essential  to  development. — Diffu- 
sion of  burdens  and  benefits. — Distributing  the 
effects  of  accidents. — Government  should  equalize 
losses  through  insurance. — Equal  pay  for  equal 
work. — Diffusion  calls  for  many  reforms. — The 
principle  of  intelligent  selection. — Advantages  of 
intelligence. — Nature's  methods  not  a  pattern  for 
human  law. — The  law  must  discern  between 
good  and  evil. — We  still  rely  too  far  on  natural 
selection. — Intelligent  selection  should  be  applied 
to  human  propagation. — The  law  should  deal 
with  good  and  evil  at  their  sources. — Summary. 

X.  THE  GREAT  FUNCTION  OF  THE  LAW  IS 
SERVICE— THE  PROMOTION  OF  GOOD  AND 
THE  DIFFUSION  OF  BENEFIT  .  .  .  .185 
Standards  of  good  and  evil  change. — What  is  bene- 
ficial?— What  is  detrimental? — The  law  is  be- 
ginning to  compel  cooperation. — Equality  as 
known  by  the  law. — Legal  meaning  of  liberty. 
— The  law  makes  for  stability. — Some  branches 
of  the  law  are  antiquated. — The  law  is  inade- 
quate as  yet  in  securing  economy. — The  law  has 
done  much  for  education. — The  law  of  patents 
not  yet  equitable. — The  law  must  do  more  for 
industrial  development. — The  whole  empire  be- 
hind every  citizen. — But  the  government  is  not 
yet  awake  to  its  whole  duty  to  its  citizens. — 
The  law  is  a  great  factor  in  all  development. — 
The  highest  function  of  law  may  yet  become  the 
dominant  one. 

•XI.     INTERNATIONAL  LAW  ALSO  AIMS  AT  MOLD- 


xvi  CONTENTS 

PAGE 
ING  MEN  AND  INSTITUTIONS  TO  HIGHER 

TYPES 202 

First  principle. — Equality  of  nations  and  of  indi- 
viduals.— Applies  to  nations  only. — Second  prin- 
ple. — Restrictions  upon  warfare. — Position  of 
other  nations. — Duties  and  rights  of  neutrals. 
— The  need  for  international  organization  to 
enforce  international  law. — The  coming  of  uni- 
versal peace. 

XII.    THE    LAW    IS    A    RESERVOIR    OF    SOCIAL 

PROGRESS 209 

The  law  as  a  reservoir. — Progress  leads;  law  fol- 
lows.— Individuals  in  advance. — Law  naturally 
conservative. — Radicalism  must  advance. — No 
government  radical. — Progress  secured  at  cost. 
— Law  not  necessarily  reactionary. — Law  holds 
germs  of  progress. — Law's  elasticity. — Recogni- 
tion of  the  law's  social  service. — Change  in 
law's  ideals. — Social  consciousness. — Social  con- 
science. 


LEGAL  DOCTRINE 
AND  SOCIAL  PROGRESS 


THE  LAW  AS  A  FORM  OF  CONTROL 

The  law  is  a  means  of  molding  and  controlling 
men — one  means  by  which  the  controlling 
power  in  a  community  bends  individuals  and 
institutions  to  its  will.  It  consists  of  rules  and 
regulations  prescribed  by  the  governing  author- 
ity and  requires  obedience  from  the  governed. 
The  law  supports  its  requirements  by  estab- 
lishing various  safeguards  and  means  of  pro- 
tection, such  as  police,  health  boards,  inspect- 
ors, etc.;  it  provides  for  redress  to  those  who 
are  injured  by  its  violation  and  for  public  pros- 
ecution of  persons  guilty  of  the  serious  of- 
fenses classed  as  crimes;  it  then  punishes  by 
fine,  imprisonment,  removal  from  office,  civic 
disqualification,  or  by  other  physical,  financial 
or  political  penalty. 

The  law  is  but  one  of  various  means  of  con- 
trol. There  are  other  means  of  control,  such 
as  religion,  superstition,  ethical  teaching,  public 

17 


18    LEGAL  DOCTRINE  AND  SOCIAL  PROGRESS 

opinion,  etc.  Men  use  physical  force,  persua- 
sion, education,  social  ostracism,  boycott,  black- 
list, all  sorts  of  economic,  political  and  social 
pressure — court,  legislature,  school,  press,  pul- 
pit, platform,  market,  bank,  factory,  etc.,  etc.,  in 
the  effort  to  make  other  men  do  as  they  wish. 
Every  man  and  every  group  of  men  is  con- 
stantly striving  consciously  or  unconsciously, 
effectively  or  ineffectively  to  control  the  world 
in  his  or  its  interest. 

The  object  of  law  is  happiness.  Happiness  is 
the  object  of  all  human  endeavor.  Misery  is  not 
sufficiently  attractive  to  make  men  cultivate  it 
intentionally  for  its  own  sake.  They  may  culti- 
vate it  through  ignorance  or  weakness  which 
leads  them  to  prefer  a  present  gratification 
to  a  future  good.  Or  they  may  cultivate  cer- 
tain forms  of  it  intentionally  as  the  means  of 
securing  greater  bliss  in  other  directions,  as 
when  an  ascetic  persecutes  the  flesh  for  the  sake 
of  his  spiritual  ideals  and  the  happiness  he  be- 
lieves will  come  to  him  in  a  future  life.  But 
however  much  the  matter  may  be  obscured  by 
ignorance  or  the  conflict  of  mind  and  body,  the 
underlying  motive  of  human  effort  is  always 
the  pursuit  of  happiness.  The  law  is  a  means 
to  this  end,  used  with  more  or  less  success  ac- 
cording to  the  enlightenment  and  power  of 
those  who  enact  and  enforce  it. 


THE   LAW   AS  A   FORM   OF   CONTROL  19 

Leading  means  of  control  contrasted.  Law, 
religion,  public  opinion,  etc.,  are  born  of  social 
life  and  develop  with  that  life.  In  a  state  of 
isolation  none  of  the  molding  forces  exists  ex- 
cept in  the  embryonic  form  appropriate  to 
family  life. 

Religion  acts  upon  conduct  through  the  con- 
science and  the  moral  emotions,  through  the 
love  of  good  and  the  hate  of  evil,  or  what  is 
supposed  to  be  good  and  evil.  It  is  an  internal, 
intangible  compulsion  aided  externally  by  as- 
sociation and  sympathy. 

Public  opinion  acts  upon  us  through  the  favor 
and  disfavor,  association  and  ostracism,  ap- 
probation and  disapprobation  of  our  fellow- 
men.  It  is  a  massive,  external,  intangible  con- 
trol. 

The  law  molds  human  conduct  by  means  of 
the  organized  application  of  physical  compul- 
sions to  the  persons  or  property  of  the  people. 
It  is  a  massive,  external,  tangible  control. 

Law  too  costly  to  be  used  to  enforce  the  whole 
moral  law.  Which  forms  of  control  should  be 
used  in  any  particular  case  or  class  of  cases 
depends  on  the  nature  and  training  of  the  per- 
sons to  be  controlled  and  the  peculiar  circum- 
stances, especially  in  relation  to  cost,  certainty, 
directness,  definiteness  and  practicability.  It 
costs  a  great  deal  in  time,  money  and  friction 


20    LEGAL  DOCTRINE  AND  SOCIAL  PROGRESS 

to  set  the  cumbrous  machinery  of  the  law  in 
motion  and  to  carry  it  through  to  judgment 
and  execution;  to  use  that  method  of  control 
for  small  offenses  against  the  moral  law,  such 
as  ordinary  lying,  explosions  of  ill-temper,  com- 
mon breaches  of  courtesy,  etc.,  would  be  to  in- 
cur far  greater  evils  than  those  intended  to 
be  repressed.  Such  offenses  should  be  dealt 
with  by  public  opinion  and  the  inner  ethical 
control  which  work  with  the  minimum  cost  and 
the  maximum  of  effectiveness. 

The  law  draws  the  line  at  the  average  man. 
It  would  be  folly  to  attempt  to  use  the  law 
to  punish  the  ordinary  shortcomings  of  the 
average  man.  Any  system  of  law  that  would 
make  the  mass  of  human  conduct  subject  to 
suit  or  prosecution,  or  bring  the  mass  of  men 
into  court  or  make  them  liable  to  be  brought 
into  court,  would  be  simply  intolerable.  The 
law  may  be  used  to  punish  the  sins  of  our 
savage  blood,  to  press  the  defective  classes 
into  shape  and  bring  the  lagging  minority  up 
to  the  average  standard.  But  the  common  sins 
of  the  average  man  should  be  left  to  education, 
public  opinion  and  the  complex  mass  of  family 
and  social  influences  that  are  gradually  molding 
human  nature  to  higher  and  higher  types. 
The  law  draws  a  broad  line  at  the  average  level 
civilization  has  attained — it  requires  only  good 


THE   LAW   AS   A   FOBM   OF   CONTROL  21 

faith  and  due  care,  that  is,  the  degree  of 
honesty,  care  and  skill  which  an  ordinary  man 
would  exercise  under  similar  circumstances. 
It  does  not  require  the  honesty,  skill  and  care 
exhibited  by  the  best  (a  rule  which  would  sub- 
ject the  bulk  of  mankind  to  legal  liability  and 
prosecution)  but  only  demands  the  virtue  of  the 
man  of  ordinary  character,  intelligence  and 
care.  The  moral  law  requires  of  all  the  con- 
duct of  the  best  and  more;  but  the  civil  law 
demands  only  the  goodness  of  the  average 
type.  The  average  man,  the  man  of  ordinary 
character,  the  man  of  ordinary  providence  and 
intelligence,  is  the  fundamental  standard  in  the 
civil  law.  If  you  come  up  to  that  standard  you 
are  secure  from  legal  liability,  or  should  be  if 
the  law  conforms  to  its  theory;  but  if  you  fall 
below  that  standard  you  may  be  liable  both  to 
society  and  to  those  individuals  injured  by  your 
defective  conduct. 

The  law  waits  for  crystallized  public  opinion. 
So  again  uncertainty  as  to  the  character  of  the 
act,  or  the  proof  of  it,  may  bar  the  law  as  a 
remedy.  Society  is  not  yet  agreed  that  the 
use  of  intoxicants  (I  am  not  referring  to  the 
organized  liquor  traffic),  narcotics  or  drugs, 
stock  speculation,  sensational  journalism,  or 
useless  duplication  of  industries,  stores,  fac- 
tories, etc.,  is  immoral;  the  legal  presumption 


22         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

is  always  with  liberty  till  experience  makes 
it  clear,  beyond  a  reasonable  doubt,  that  the 
conduct  in  question  is  against  the  interests 
of  society.  Till  then  the  matter  should  be  left 
to  ethical  discussion,  to  the  pressure  of  public 
opinion  and  its  allies.  Gradually  experience 
works  such  questions  out  and  brings  the  com- 
munity to  substantial  unity  of  judgment.  Two 
notable  examples  have  occurred  in  recent  years. 
Pugilism  and  the  lottery  not  many  years  ago 
were  in  the  free  field,  outside  the  law,  subject 
only  to  public  opinion  and  ethical  education. 
But  as  experience  made  it  more  and  more  clear 
that  these  things  were  contrary  to  the  social 
well-being,  public  opinion  became  substantially 
a  unit,  and  an  increasingly  vigorous  unit 
against  them,  until  this  public  opinion  or  ethi- 
cal judgment  of  the  people  was  crystallized 
into  law.  Now  it  is  difficult  for  pugilists  to 
find  a  place  in  this  country  where  they  can  fight 
with  impunity,  and  lotteries  are  denied  the  use 
of  the  United  States  mails  by  Federal  enact- 
ment. Prize  fights  and  lotteries  have  been 
transferred  from  the  doubtful  or  disputed  class 
to  that  of  clearly  ascertained  and  legally  re- 
pressed immoralities. 

The  law  enters  only  where  proof  is  possible. 
Where  the  facts  are  difficult  of  proof  the  law  is 


THE  LAW  AS  A  FOKM  OF  CONTROL      23 

equally  excluded.  Neither  is  it  adapted  to  deal 
with  sins  of  envy,  jealousy,  overeating,  vices 
of  secret  character,  etc.  In  the  field  of  evi- 
dence the  law  draws  broad  lines.  It  will  not 
deal  with  evils  that  in  their  nature  are  gener- 
ally incapable  of  clear  proof.  It  puts  up  the 
bars  against  hearsay  evidence.  It  requires  a 
witness  to  tell  what  he  knows  of  his  own  knowl- 
edge, not  what  he  infers  from  what  he  has 
heard  others  say.  It  requires  the  best  evidence 
the  nature  and  circumstances  of  the  case  per- 
mit. 

The  law  is  peculiarly  adapted  to  cases  of 
direct,  pecuniary  loss  where  the  damage  can  be 
definitely  ascertained,  but  it  is  not  so  well 
adapted  to  cases  of  indirect,  indefinite  injury. 
If  A  shoots  B  's  horse,  the  damage  is  direct  and 
can  be  quite  definitely  estimated.  But  if  A 
injures  B  by  personal  insults  or  hurts  his  feel- 
ings or  his  business,  by  crippling  in  person  or 
property  B  's  friend,  partner,  client  or  customer, 
the  damage  to  B  is  so  indirect  and  indefinite 
that  the  law  will  not  attempt  to  deal  with  it. 
Here  again  broad  lines  are  drawn  on  grounds 
of  cost,  simplicity  and  justice  to  the  average 
man.  The  law  will  not  look  to  the  remote  and 
indefinite  results  of  human  action;  it  looks 
rather  to  the  direct  and  definite  results,  the 


24         LEGAL   DOCTRINE   AND   SOCIAL  PROGRESS 

natural  and  proximate  consequences,  which  the 
ordinary  man  must  be  presumed  to  contemplate 
as  the  natural  result  of  his  conduct. 

Form  of  control  depends  on  practicability. 
The  question  of  practicability  is  very  important 
in  relation  to  the  form  of  control  that  ought  to 
be  used.  When  the  boodle  aldermen  of  Phila- 
delphia and  their  allies  had  the  machinery  of 
the  law,  such  as  nominations,  elections,  count- 
ing of  ballots,  courts,  etc.,  in  their  control  and 
were  about  to  pass  the  fraudulent  gas  ordinance 
of  the  United  Gas  Improvement  Co.,  over  the 
veto  of  the  Mayor,  it  was  clearly  impracticable 
to  reach  them  by  way  of  the  law,  but  public 
opinion  attacked  and  conquered  them  with  ease. 
They,  their  wives,  and  their  children  were  os- 
tracized, hooted  on  the  streets,  reviled  in  public, 
boycotted,  and  socially  outlawed.  They  soon 
found  this  treatment  unendurable,  and  one  by 
one  gave  up  their  boodle  allegiance  for  the  time 
at  least  and  avowed  their  intention  of  voting 
against  the  ordinance.  On  the  other  hand  a 
burglar  or  bank  robber  would  probably  care  lit- 
tle for  public  opinion  in  any  form.  Some  of 
the  giant  railway  rebaters,  such  as  Eockefeller 
and  Armour,  with  millions  to  buy  subservience 
and  homage  from  those  about  them,  seem  prac- 
tically impervious  to  the  adverse  judgments  of 
society.    Nothing   but   imprisonment   or  total 


THB  LAW  AS  A  FOKM  OP  CONTKOL      25 

forfeiture   of  property  and  industrial  power, 
would  seem  to  be  adequate  in  such  cases. 

The  law  may  go  too  far.  What  form  of  con- 
trol will  be  used  in  any  case  depends  in  a  large 
measure  on  the  character,  temper  and  motives 
of  the  governing  authority.  An  underestimate 
of  the  value  of  liberty,  and  an  over  reliance 
on  legal  compulsion  may  lead  to  arbitrary  and 
burdensome  laws  against  Sunday  work,  theater 
going,  and  efforts  to  regulate  by  statute  the  diet 
and  dress  and  even  the  beliefs  of  the  citizens. 


n 


THE  LAW  AS  AN  EXPRESSION  OF  THE  INTERESTS  OF 
THE  GOVERNING  AUTHORITY 

In  a  monarchy  the  law  expresses  the  will  of 
one  person  and  is  used  to  mold  the  community 
to  his  purposes.  In  an  aristocracy  the  law  rep- 
resents the  will  of  a  class  and  is  used  to  mold 
society  to  its  interest.  In  a  democracy  the  law 
represents  the  will  of  the  people  and  is  used 
to  mold  society  in  the  interest  of  the  masses. 
Any  one  of  these  governments  may  mistake  its 
interest,  but  it  will  constantly  seek  it,  and  in 
finding  it  will  make  the  law  conform  to  such 
interest  in  proportion  to  its  experience  and  in- 
telligence. 

The  real  power  not  always  indicated  by  form 
of  government.  All  three  forms  of  govern- 
ment may  be  shams,  appearances,  masks  for 
realities  quite  different  from  the  nominal  form. 
A  monarchy  in  name  may  be  in  fact  an  aristoc- 
racy, as  in  England;  and  an  aristocracy  in 
name  may  be  really  a  monarchy  if  the  actual 
dominating  power  is  in  one  man.  So  in  a  re- 
public, so-called,  if  a  military  despot,  civic  boss, 

26 


GOVERNMENT   FOR   THE   GOVERNORS  27 

political  machine,  or  group  of  plutocrats,  con- 
trols nominations  and  elections  and  gets  the  law- 
made  in  whole  or  in  part  according  to  its  will 
instead  of  in  accord  with  the  people's  will,  the 
government  is  to  that  extent  a  monarchy  or 
aristocracy  in  fact,  whatever  it  may  be  in 
name.  Rome  was  a  republic  in  name  during 
the  whole  of  Julius  Caesar's  despotism.  He  is 
sovereign  whose  will  is  in  control.  If  the 
agents  through  whom  the  people  act  make  laws 
the  people  do  not  want,  and  refuse  to  make  laws 
the  people  do  want,  they  are  to  that  extent  the 
actual  sovereigns.  Under  the  forms  of  demo- 
cratic government  the  people  may  in  reality 
have  little  or  nothing  more  than  the  privilege  of 
periodically  electing  a  new  set  of  masters  from 
nominees  selected  by  bosses,  machines  or  domi- 
nating groups,  plutocrats  and  politicians  in 
whose  interest  the  so-called  "representatives" 
of  the  people  really  act.  Under  the  New  Eng- 
land town  meeting  system  with  an  intelligent 
and  public  spirited  citizenship,  in  Switzerland 
with  the  initiative  and  referendum  and  pro- 
portional representation,  and  in  New  Zealand 
with  direct  nominations  by  popular  petition 
(completely  eliminating  the  caucus  and  con- 
vention) and  universal  questioning  and  pledg- 
ing of  candidates,  the  people's  will  is  in  sub- 
stantially   complete    and    continuous    control. 


28    LEGAL  DOCTRINE  AND  SOCIAL  PROGRESS 

With  all  these  things  together — direct  nomina- 
tion by  petition,  the  initiative  and  referendum, 
proportional  representation  and  an  intelligent 
and  public  spirited  citizenship — there  will 
come  the  full  realization  of  democracy,  govern- 
ment by  and  for  the  people  in  full  bloom,  free 
from  any  taint  of  individual  or  class  legisla- 
tion. 

The  law  in  a  real  democracy.  In  such  a  de- 
mocracy the  law  will  be  the  embodiment  of  the 
principles  of  justice  and  common  sense,  and 
will  encourage  good  and  repress  evil  with  im- 
partial hand  and  the  minimum  of  cost  and 
friction.  Under  any  form  of  government  this 
must  be  true  in  large  degree,  for  no  government 
could  long  exist  on  any  other  basis.  A  system 
of  law  that  on  the  whole  established  injustice, 
repressed  good  and  encouraged  evil — dis- 
couraged order,  industry  and  fair  dealing,  and 
encouraged  disorder  and  aggression,  theft,  rob- 
bery, murder,  arson, — could  not  long  endure ;  it 
would  breed  anarchy  and  work  the  dissolution 
of  society  and  of  itself.  But  while  the  law  must 
conform  to  justice  and  the  common  good  in  a 
large  degree  under  any  lasting  government,  the 
deviations  are  likely  to  be  much  greater  under 
monarchy  or  aristocracy  than  under  democracy, 
if  the  people  have  reached  a  stage  of  civiliza- 
tion that  makes  the  democracy  a  substantial 


GOVERNMENT   FOR   THE   GOVERNORS  29 

fact  and  not  a  mere  form.     The  best  form  of 
government  is  a  question  of  the  degree  of  civili- 
zation.   With  a  low  grade  of  people  a  well  con- 
ditioned monarchy  or  aristocracy  may  do  far 
more  for  order  and  progress — far  more  to  de- 
velop the  habits  of  industry  and  cooperation 
on  which  a  higher  civilization  must  be  founded 
— than  a  democracy  which  for  lack  of  an  intelli- 
gent citizenship  would  be  only  a  cover  for  the 
worst  forms  of  individual  or  class  despotism. 
But  when  the  people  have  advanced  so  far  as 
to  respond  in  reasonable  degree  to  the  stimulus 
of  democratic  institutions  and  move  toward  the 
realization  of  self-government,  justice  and  the 
public  good  will  have  more  chance  with  a  de- 
mocracy, for  justice  and  the  public  good  are 
the  real  interest  of  the  controlling  power  in  a 
republic.    It  is  true  that  an  enlightened  mon- 
arch may  make  justice  and  the  public  good  his 
interest  and  purpose,  but  such  cases  are  very 
rare,  and  history  shows  that  the  selfish  inter- 
ests of  monarchs  and  aristocrats  have  almost  al- 
ways caused  intense  and  grievous  deviations 
from  justice  and  the  public  good;  even  if  this 
were  not  so,  no  monarchy  or  aristocracy  could 
have  the  educative,  diffusive  and  stimulative 
values  of  self-government.    A  democracy  is  the 
only  form  of  government  in  which  the  interest 
of  the  ruling  power  coincides  with  the  interest 


30    LEGAL  DOCTRINE  AND  SOCIAL  PROGRESS 

of  the  public.  And  as  the  ruling  power  tends  to 
use  the  government  to  subserve  its  interest, 
a  real  democracy  is  the  only  government  that 
can  be  relied  upon  to  serve  the  public  interest 
entirely  and  conform  to  justice  and  the  public 
good  along  the  whole  line. 

Not  only  is  the  interest  of  democratic  gov- 
ernment more  in  harmony  with  the  public  good, 
but  the  knowledge  of  what  constitutes  the 
public  good  is  likely  to  be  greater  in  a  real  re- 
public than  in  a  monarchy  or  aristocracy. 

Collective  ability  must  be  employed.  One  of 
the  most  vital  factors  in  law  and  government 
is  a  system  which  permits  free  play  to  what 
may  be  called  the  collective  ability  of  the  peo- 
ple. When  men  follow  their  errors,  prejudices, 
and  self-interests,  they  go  apart ;  when  they  fol- 
low truth  and  the  public  good,  they  come  to- 
gether. Men  diverge  by  error  and  selfishness, 
and  unite  by  truth  and  justice.  Their  unities 
are  much  more  likely  to  be  right  than  their  dif- 
ferences. Divergence  is  an  indication  of  er- 
ror, convergence  is  evidence  of  truth  and  com- 
mon good.  What  a  million  men  vote  for,  acting 
freely  and  independently,  is  likely  to  be  wiser 
and  better  and  more  reliable  than  the  thought 
and  intent  of  the  average  individual,  or  the 
unchecked  thought  and  intent  of  any  individual 
whatever. 


GOVEENMENT   FOE   THE   GOVEENOES  31 

Notice  carefully  the  clause  ' *  acting  freely  and 
independently ; ' '  that  is  the  key  to  the  situation. 
If  men  do  not  vote  freely  and  independently, 
but  follow  the  dictates  of  some  political  boss  or 
party  machine,  they  forfeit  the  benefits  of  the 
great  principles  of  convergence  on  the  truth, 
and  the  mutual  cancellation  of  errors  and  prej- 
udices, resulting  from  the  free  and  harmonious 
action  of  a  multitude  of  intelligent  persons. 
The  boss  or  machine  is  as  open  to  error  and 
self-interest  as  any  individual  voter;  in  fact 
his  dictates  are  apt  to  be  the  concentrated  es- 
sence of  selfishness  and  error.  It  is  only  when 
the  citizens  act  freely  and  independently  that 
the  great  law  that  men  come  together  on  truth 
and  justice,  can  take  effect. 

The  benefits  of  a  true  democracy.  True  de- 
mocracy is  the  flower  of  the  evolution  of  gov- 
ernment. Its  benefits  briefly  stated  are  as  fol- 
lows: 

(1)  It  means  harmony  of  the  ruling  interest 
with  justice  and  the  public  good. 

(2)  It  cancels  private  interests  and  errors 
against  each  other  and  gives  effect  to  the  col- 
lective wisdom. 

(3)  It  means  the  equalization  or  the  dif- 
fusion of  power,  which  carries  with  it 

(4)  The  equalization  of  opportunity;  and 


32         LEGAL   DOCTRINE   AND   SOCIAL  PROGRESS 

(5)  The  diffusion  of  benefit— liberty, 
wealth,  education,  virtue,  etc.,  also 

(6)  The  fairer  diffusion  or  equalization  of 
the  burdens  of  society. 

(7)  By  placing  power  and  responsibility 
with  the  people,  democracy  protects  them  from 
the  injustice,  oppression  and  debasement  of 
individual  and  class  rule. 

(8)  The  educative  value  of  self-government 
is  of  the  utmost  importance. 

(9)  Equality  before  the  law  and  equality  of 
opportunity  stimulate  the  development  of  in- 
dustry, art,  science,  invention,  literature,  social 
progress,  civilization. 

(10)  In  every  element  and  relation  of  life 
democracy  favors  liberty,  justice,  equality,  de- 
velopment and  the  public  welfare.  It  aims 
at  the  good  of  all,  not  for  the  benefit  or  advan- 
tage of  a  few. 


ni 

FIXED   LAW   IS  BUT   THE   CEYSTALLIZATIONS   OF 
ANCIENT   GROWTHS 

It  is  to  democracy  therefore  that  we  must  look 
for  the  ideal  law ;  it  is  to  the  nearest  approaches 
to  democracy  that  we  must  go  for  the  highest 
developments  of  the  law,  the  closest  approxima- 
tions to  and  most  advanced  movements  toward 
a  true,  well-balanced,  thoroughly  developed  sys- 
tem. 

International  law.  Our  law  is  divided  into 
Internal  or  Domestic  law  and  International 
law.  International  law  consists  of  the  rules 
and  principles  which  through  the  express  or 
tacit  agreement  of  nations  have  come  to  govern 
their  relations  with  each  other.  It  is  to  be 
found  in  treaties,  the  usages  of  nations, 
opinions  of  jurists,  precedents,  and  judgments 
of  courts  and  boards  of  arbitration. 

Domestic  law.  Internal  or  Domestic  law  is 
that  which  is  created  or  accepted  by  our  govern- 
ing authorities  to  control  within  our  own  terri- 
tory. It  is  divided  into  the  written  and  the 
unwritten  law.    The  written  law  consists  of 

33 


34    LEGAL  DOCTRINE  AND  SOCIAL  PROGRESS 

constitutions,  statutes  and  ordinances.  The  un- 
written law  consists  of  the  common  law  and 
equity. 

The  common  law.  The  common  law  con- 
sists of  the  principles  and  usages  ascertained 
and  established  by  the  ancient  English  courts 
and  their  modern  successors  in  English  speak- 
ing countries,  as  just  and  proper  to  be  enforced 
in  the  cases  that  have  come  before  them,  and 
are  embodied  in  their  decisions  which  are  pre- 
served in  the  public  records  and  the  law  reports, 
and  digested  by  writers  of  approved  authority. 
The  principles  of  justice  and  the  fair  usages  of 
business  and  society  as  ascertained  by  the 
courts,  constitute  the  substance  of  the  common 
law;  and  the  recorded  decisions  are  the  evi- 
dence. 

Equity.  Equity  is  the  correction  of  that 
wherein  the  law,  by  reason  of  its  universality  or 
incomplete  development,  is  deficient.  Equity 
has  jurisdiction  wherever  there  is  a  right  and 
no  plain,  adequate  and  complete  remedy  at  law. 
For  economy  and  simplicity  the  law  draws 
broad  lines  which  do  not  afford  full  justice  in 
all  cases.  Moreover,  it  presents  a  case  of  ar- 
rested development  or  loss  of  flexibility  with 
age,  brought  about  by  the  growth  of  reverence 
for  precedent  to  a  point  that  checked  develop- 
ment and  produced  a  rigidity  wholly  inconsist- 


COMMON   LAW   AND   EQUITY  35 

ent  with  the  original  nature  and  purpose  of  the 
common  law.  Equity  is  really  a  second  and 
superior  common  law,  a  new  growth  from  the 
same  old  root  arising  above,  supplementing  and 
dominating  the  original  growth.  It  bears  some- 
what the  same  relation  to  the  common  law 
that  the  cerebrum  bears  to  the  cerebellum  and 
medulla. 

The  common  law  too  rigid.  In  early  days 
in  England  the  King  was  the  source  of  all 
law,  and  the  fountain  head  of  judicial  power. 
He  appointed  deputies  or  judges  in  the  vari- 
ous divisions  of  his  realm  to  hear  and  de- 
termine cases  as  his  representatives.  These 
judges  heard  the  evidence,  tried  to  decide 
according  to  what  seemed  just  and  fair  under 
all  the  circumstances  of  each  case.  As  the 
records  of  the  judicial  decisions  multiplied 
subsequent  judges  recognized  the  importance 
of  uniformity  and  stability  of  the  law  and 
finding  it  easier  to  follow  an  old  decision  than 
to  reason  out  each  case  on  its  own  merits,  re- 
ferred to  former  decisions  for  light  and  aid  in 
each  new  case;  after  a  time  they  came  to  re- 
gard past  decisions  as  their  chief  guides,  for- 
getting partially  or  wholly  their  independent 
authority  to  decide  according  to  the  justice  of 
the  case.  This  growing  reverence  for  prece- 
dent gave  the  common  law  a  rigidity  that  hin- 


36         LEGAL,   DOCTRINE   AND   SOCIAL  PROGRESS 

dered  it  from  adapting  itself  to  the  needs  of 
changing  times  and  circumstances.    The  prac- 
tice of  the  Saxon  judges  crystallized  about  the 
two  fundamental  methods  of  the  common  law — 
the  public  prosecution  of  criminal  offenses  and 
civil   suits   for   damages  for  private   wrongs. 
The  dominion  of  precedent  held  the  judges  to 
the  beaten  path,  and  complainants  from  time 
to  time  were  refused  the  specific  redress  they 
demanded  because  there  was  no  precedent  in 
a  case  like  theirs.    For  instance,  A  refused  to 
fulfill  his  contract  with  B,  or  threatened  to  cut 
down  an  ancient  tree  most  highly  prized  by  B. 
The  common  law  gave  B  the  right  to  sue  for 
damages  after  the  tree  was  destroyed  or  the 
contract  broken,  but  B  might  regard  such  dam- 
ages as  wholly  inadequate  relief.     Money  could 
not  pay  him  for  the  loss  of  the  tree  that  took  a 
century  to  grow,  nor  for  the  breach  of  contract 
on  the  basis  of  which  he  had  laid  his  plans  for 
the  future  development  of  his  business.    So 
some  of  these  complainants,  who,  through  the 
rule  of  precedent  could  get  no  adequate  relief 
at  common  law,  went  to  the  original  source  of 
justice  and  appealed  directly  to  the  King  or  to 
the  high  officials  entitled  to  represent  him  in 
the  exercise  of  his  supreme  judicial  power. 

In  1067  William  the  Conqueror  appointed  the 
first  Lord  High  Chancellor  with  special  author- 


COMMON   LAW   AND   EQUITY  37 

ity  to  hear  and  determine  such  complaints  and 
grant  whatever  relief  he  deemed  best.  Previ- 
ously the  Chancellors  of  the  Exchequer  had  had 
jurisdiction  in  such  cases.  The  Chancellors 
dealt  with  the  suits  that  came  before  them  in 
a  broad  and  liberal  spirit.  They  studied  the 
Koman  Law  and  got  new  light  from  the  pub- 
licists of  the  Netherlands.  They  did  not  con- 
fine themselves  to  the  methods  of  the  common 
law,  but  granted  relief  that  seemed  best  calcu- 
lated to  secure  the  maximum  of  justice  under 
adequate  protection  and  the  special  circum- 
stances of  each  case.  For  example,  instead  of 
leaving  B  to  sue  for  damages  for  breach  of 
contract  or  loss  of  his  valued  tree,  the  Chan- 
cellor, in  a  proper  case,  would  order  A  to  per- 
form his  contract  and  enjoin  him  from  cutting 
down  the  ancient  tree  under  penalty  of  impris- 
onment if  he  disobeyed  the  order  of  the  court. 
The  principles  and  doctrines  supported  by  the 
decisions  of  the  Chancellor  and  his  successors 
constitute  Equity. 

Equity  requires  flexibility.  In  later  times 
the  Equity  judges  manifested  the  same  tend- 
ency the  law  judges  did,  namely,  to  forget 
their  high  authority  to  administer  justice  freely 
and  fully  according  to  the  circumstances  of 
each  case,  and  they  often  refused  a  remedy 
where  they  could  not  find  a  precedent  in  the 


38         LEGAL   DOCTRINE   AND   SOCIAL  PROGRESS 

past  decisions  of  the  Courts  of  Equity.  Never- 
theless, there  are  Equity  judges,  both  in  Eng- 
land and  America,  who  still  recognize  the  true 
nature  of  the  trust  reposed  in  an  Equity  Court, 
and  will  grant  relief  in  a  new  and  proper  case 
according  to  the  principles  of  justice  and  com- 
mon sense,  even  though  they  cannot  find  a  spe- 
cific precedent  in  the  past  reports  of  Equity 
decisions. 


rv; 

THE   LAW   IS   A   LIVE,    CHANGING,    AND   ADJUSTABLE 
INSTRUMENT 

The  law  "in  the  breast  of  the  judge"  is  flex- 
ible. In  spite  of  the  fact,  however,  that  both 
common  law  and  Equity  have  lost  the  flexibility 
of  youth,  and  in  spite  of  the  rigidity  and  in- 
adequacy of  constitutions  and  statutes  framed 
by  legislators  who  cannot  possibly  foresee  the 
circumstances  of  future  cases,  the  law  has  much 
more  vitality  and  adaptability  than  is  generally 
understood.  In  fact,  the  law  as  a  rule  really 
rests  in  the  breast  of  the  judge.  Through  his 
power  to  construe  the  written  law  and  to  se- 
lect the  principles  and  cases  he  will  follow,  the 
judge  can  almost  always  build  a  legal  founda- 
tion for  the  decision  he  deems  right  in  the  case 
at  bar.  It  is  easy  to  modify  the  application 
of  statutes  by  the  judicial  power  of  construc- 
tion; and  there  are  so  many  principles  and 
precedents  running  in  different  directions,  that 
a  judge  can  generally  find  some  principle, 
precedent  or  construction  to  justify  in  legal 
form  the  conclusion  he  has  arrived  at  on  the 

39 


40         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

facts.  The  usual  judicial  process,  especially 
with  judges  of  the  higher  courts  who  determine 
the  law,  is  substantially  this :  The  judge  stud- 
ies carefully  the  facts  of  the  case  in  the  light 
of  argument,  established  principles  and  past 
decisions,  makes  up  his  mind  what  is  fair  and 
just  under  all  the  circumstances  of  the  case, 
and  then  selects,  applies  and  follows  the  prin- 
ciples and  precedents  that  will  lead  to  or  justify 
the  conclusion  he  deems  right  upon  the  facts. 
That  is  the  heart  of  the  judicial  process  as  con- 
sciously or  unconsciously  carried  on  in  the 
minds  of  the  best  judges.  In  discussing  this 
well-known  view  some  time  ago  with  a  justice 
of  the  United  States  Supreme  Court,  I  declared 
my  belief  that  by  this  method  even  the  courts 
of  last  resort  arrive  at  their  decisions.  He 
laughed  and  said  I  was  right.  I  have  at  vari- 
ous times  made  similar  statements  to  three 
chief  justices  in  leading  states  and  to  a  num- 
ber of  lesser  lights  in  the  judicial  world,  always 
with  assent  to  the  proposition  more  or  less  em- 
phatically pronounced.  Such  corroboration  is 
very  interesting  and  important,  though  not  es- 
sential to  the  proof,  for  the  reported  decisions 
of  our  courts  bear  internal  evidence  that  makes 
the  method  luminous. 

Over  a  vast  field  the  effect  of  the  law  is  de- 
termined absolutely   by  the  attitude   of  the 


THE   LAW   IS   LIVE   AND   FLEXIBLE  41 

judge.  Suit  is  brought  on  a  written  contract, 
an  insurance  policy,  for  instance,  and  the  de- 
fendant claims  that  one  of  the  clauses  of  the 
contract  has  been  broken — a  clause  forbidding 
the  use  of  a  gasoline  engine  on  the  premises. 
The  plaintiff  offers  oral  evidence  to  show  that 
the  insurance  agent  knew  a  gasoline  engine  was 
used  in  the  building  and  that  it  was  understood 
and  agreed  that  this  should  not  affect  the  in- 
surance. The  court  may  rule  for  the  defend- 
ant on  the  ground  that  oral  evidence  cannot  be 
received  to  contradict  or  vary  the  terms  of  a 
written  contract  or  the  judge  may  invoke  the 
principle  that  the  rule  against  parol  was  in- 
tended to  prevent  fraud  and  will  not  be  applied 
where  its  effect  would  be  to  consummate  a 
fraud.1 

iSee  13  Wall.  222;  6  Vroom,  360C;  7  Cush.  175;  133  Mass. 
82;  135  Mass.  449.  In  7  Cush.  and  133  Mass.  the  original 
papers  show  that  only  a  soliciting  agent  knew  the  facts  on 
the  Co.'s  side  and  that  he  misstated  the  facts  to  the  com- 
pany, as  the  assured  would  have  seen  if  he  had  read  the 
application  filled  out  by  the  agent.  In  7  Cush.  there  was 
other  insurance  and  the  assured  so  stated,  but  the  agent 
made  the  application  state  the  contrary.  In  133  Mass.  the 
assured  was  sick  and  so  stated,  but  the  agent  made  the  ap- 
plication say  she  was  well.  Under  such  circumstances  it 
would  be  a  fraud  on  the  company  to  hold  for  the  assured 
and  the  policy  must  be  sustained,  and  this  can  be  accomplished 
by  applying  the  rule  against  parol.  The  case  is  wholly  dif- 
ferent where  the  company  itself  or  the  general  agent  who  draws 
up  and  issues  the  policy,  knows  of  the  breach  of  condition, 


42         LEGAL,   DOCTRINE   AND   SOCIAL   PROGRESS 

On  the  question  whether  the  minds  of  the 
parties  met  in  making  a  contract  by  mail  the 
judge  may  rule  that  the  contract  was  complete 
if  the  offeree  mailed  his  acceptance  before  re- 
ceiving notice  of  a  revocation  by  the  offerer; 
or  he  may  follow  the  rule  that  the  acceptance 
must  be  received  by  the  offerer  before  revoca- 
tion in  order  to  complete  the  contract;  or  he 
may  adopt  the  principle  that  the  matter  de- 
pends on  the  question  whether  there  was  a 
point  of  time  in  which  the  minds  of  the  parties 
did  actually  meet.  If  the  acceptance  was 
mailed  before  the  revocation  was  mailed,  there 
was  a  time  when  the  minds  of  the  parties  met, 
but  if  the  revocation  was  mailed  before  the  ac- 
ceptance there  was  no  time  when  the  minds  of 
the  parties  came  together,  the  offer  being  in 
fact  revoked  before  it  was  accepted.2 

Insured  buildings  in  which  a  widow  has  the 
right  of  dower  burned  down  and  the  insurance 
money  is  paid  to  the  husband's  executor.  Has 
the  widow  lost  her  dower!  The  Court  may 
rule  that  as  dower  attaches  only  to  real  estate 

other  insurance,  assured's  interest  not  the  "sole  unconditional 
title,"  vacancy,  gasoline  engine,  ill  health,  etc.  Then  it  would 
be  a  fraud  in  the  assured  to  enforce  the  conditions  of  the 
policy  and  parol  must  be  admitted. 

2  36  N.  Y.  307;  168  Mass.  198,  200;  1  Pick,  278;  9  How. 
U.  S.  390.  These  cases  can  be  harmonized  on  the  third 
principle.     But  see  5  Q.  B.  D.  346;  5  C.  P.  D.  344,  etc. 


THE   LAW   IS   LIVE   AND   FLEXIBLE  43 

the  fire  has  destroyed  the  widow's  right  in  the 
buildings,  or  he  may  adopt  the  principle  that 
the  insurance  money  really  represents  the 
buildings  and  will  be  treated  as  real  estate  so 
far  as  necessary  to  protect  the  rights  of  those 
interested  in  the  property.3 

A  owns  a  horse.  B  sells  the  horse  as  if  it 
were  his  own.  A  stands  by  and  witnesses  the 
transaction,  without  protest  or  claim  of  owner- 
ship. The  Court  may  hold  that  no  title  passed 
to  the  purchaser  as  B  had  none  to  give,  or  it 
may  rule  that  the  horse  now  belongs  to  the 
purchaser  on  the  principle  of  estoppel.  Estop- 
pel is  the  bar  the  law  puts  up  to  prevent  a 
party  from  injuring  another  by  setting  up  the 
falsity  of  a  belief  he  has  wrongfully  caused,  or 
allowed  another  to  entertain  and  act  upon.  A 
allowed  the  purchaser  to  act  on  the  belief  that 
the  horse  belonged  to  B  and  he  cannot  now  set 
up  his  own  title. 

Different  principles  of  common  law  lead  to 
enactment  of  contradictory  statutes.  Where 
paper  is  deposited  in  a  bank  for  collection  in 
another  city  and  the  bank  sends  it  to  a  repu- 
table correspondent  bank  selected  with  due 
care,  Massachusetts  holds  that  the  first  bank 
is  not  responsible  for  the  negligence  of  the  cor- 

3  See  26  N.  Y.  253;  29  Minn.  309;  40  Ch.  D.  5;  85  Pa.  208; 
18  Conn.  110;  75  Me.  202. 


44    LEGAL  DOCTRINE  AND  SOCIAL  PROGRESS 

respondent,4  while  New  York  holds  that  the 
first  bank  is  responsible.5  The  ground  of  the 
New  York  rule  is  that  an  agent  is  responsible 
for  his  sub-agents,  and  the  ground  relied  on  in 
Massachusetts  is  that  an  agent  is  not  responsi- 
ble for  sub-agents  where  the  principle  gives 
authority  to  employ  such  sub-agents  and  that 
the  deposit  of  paper  for  collection  at  a  distance 
implies  authority  to  employ  sub-agents.  On 
broader  grounds  the  weight  of  reason  seems  to 
be  with  the  New  York  rule,  for  the  first  bank 
is  in  far  better  position  to  prevent  loss  by  fault 
of  correspondents  than  the  ordinary  depositor 
can  be.  The  bank  has  intimate  relations  with 
its  correspondents  and  much  better  means  of 
judging  their  reliability  and  watching  their  con- 
duct, and  holding  them  to  account  than  the 
depositor.  Moreover,  the  first  bank's  knowl- 
edge of  its  correspondents  is  an  intricate  mat- 
ter and  the  degree  of  care  exercised  in  its  se- 
lection a  difficult  question,  and  it  greatly  sim- 
plifies and  clarifies  the  transaction  to  eliminate 
them  and  say  to  the  first  bank,  "unless  you 
make  an  express  agreement  to  the  contrary, 
you  will  be  held  responsible  for  your  corre- 

*Fabens  v.  Mercantile  Bank,  23  Pick,  330.  (See  also  1 
Cush,  177.) 

o  Allen  v.  Merchants'  Bank,  22  Wend.  215;  Ayrault  v.  Pa- 
cific Bank,  47  N.  Y.  570. 


THE   LAW   IS   LIVE   AND   FLEXIBLE  45 

spondents  and  can  adjust  your  conduct  and 
charges  accordingly." 

"Principles  of  Construction"  affect  applica- 
tion of  written  law.  When  it  is  a  question  of 
constitutional  or  statutory  law,  the  result  will 
vary  according  to  the  principle  of  construction 
the  Court  may  deem  applicable  to  the  case.  An 
act  may  be  enforced  according  to  its  letter,  on 
the  ground  that  the  legislators  meant  just  what 
they  said;  or  according  to  a  modified  interpre- 
tation based  on  the  idea  that  the  legislature  did 
not  contemplate  unreasonable  consequences ;  or 
according  to  the  concrete  purpose  of  those  who 
framed  and  passed  the  act,  on  the  ground  that 
the  known  legislative  intent  should  govern 
throughout;  or  according  to  the  underlying 
reason  of  the  law  as  it  presents  itself  to  the 
judge,  on  the  ground  that  the  reason  of  the 
law  is  the  law.  If  none  of  these  methods  of 
interpretation  produces  a  conclusion  satisfac- 
tory to  the  judge's  sense  of  justice,  he  may 
find  reason  to  declare  the  act  unconstitutional, 
as  against  either  the  express  provisions  of  the 
constitution,  state  or  national,  or  against  the 
fundamental  principles  underlying  our  consti- 
tutions and  which  they  were  made  to  enforce. 
Read  the  decisions  of  the  United  States  Su- 
preme  Court  in  the  Income  Tax  Case,6   the 

e  Pollock  v.  Farmers'  Loan  &  Tr.  Co.,  157  U.  S.  429;   158 
U.  S.  601, 


46    LEGAL  DOCTRINE  AND  SOCIAL  PROGRESS 

Northern  Securities  Case  7  and  other  cases  in 
which  the  several  justices  wrote  separate  opin- 
ions and  note  how  each  judge  relies  on  a  dif- 
ferent set  of  principles  and  precedents  as  the 
basis  for  his  conclusion.  One  judge  says  an 
Income  Tax  is  a  direct  tax, — is  clearly  such  in 
its  nature  and  effect  and  is  so  regarded  by 
economists;  and  under  the  provisions  of  the 
National  Constitution  requiring  direct  taxes  to 
be  apportioned  among  the  states  in  proportion 
to  population,  a  Federal  Income  Tax  law  will 
be  void  if  the  tax  is  not  so  apportioned.  An- 
other judge  holds  that  the  discussions  in  the 
Convention  that  framed  the  National  Consti- 
tution and  the  early  decisions  under  it,  show 
that  the  term  "direct  tax"  as  used  in  the  Con- 
stitution was  not  intended  to  include  an  In- 
come Tax.  A  third  judge  declares  that  di- 
rect taxes  in  the  meaning  of  the  Constitution 
cannot  include  an  Income  Tax  because  the  con- 
sequences of  apportioning  such  a  tax  in  pro- 
portion to  population  would  be  unjust  and  ab- 
surd, and  the  framers  of  the  Constitution  can- 
not be  supposed  to  have  intended  a  construc- 
tion which  would  produce  such  consequences 
under  the  principle  of  apportionment  accord- 
ing to  population,  two  states  of  equal  popula- 
tion would  have  to  raise  an  equal  amount  of 

i  U.  S.  v.  Northern  Securities  Co.,  193  U.  S.  197. 


THE   LAW   IS   LIVE   AND   FLEXIBLE  47 

Income  Tax.  Say,  for  instance,  $2,000,000  for 
each  state.  But  one  might  be  an  agricultural 
state  with  very  few  incomes  large  enough  to 
fall  within  the  field  of  the  tax  and  a  total  in- 
come of  $4,000,000  subject  to  the  tax,  while  the 
other  might  be  a  wealthy  manufacturing  and 
commercial  state  with  many  incomes  large 
enough  to  come  within  the  law  and  a  total  of 
$40,000,000  subjected  to  the  tax.  In  this  latter 
state  those  subjected  to  the  tax  would  pay  at 
rate  of  5%  on  their  incomes,  while  in  the  for- 
mer state  those  subject  to  the  tax  would  have 
to  pay  at  a  rate  ten  times  greater,  or  50%  of 
their  yearly  income.  It  cannot  be  supposed 
that  the  words  of  the  Constitution  were  in- 
tended to  be  used  in  any  sense  that  would  lead 
to  such  results.  The  words  "direct  taxes"  in 
the  Constitution  can  refer  only  to  such  taxes 
as  may  be  apportioned  to  population  without 
injustice  and  oppression. 

Judges  disagree.  In  the  Northern  Securities 
Case,  the  majority  opinion,  or  rather  the  plu- 
rality opinion,  delivered  by  Justice  Harlan  and 
concurred  in  by  Justices  McKenna  and  Day, 
declares  that  the  Sherman  Anti-trust  act  makes 
unlawful  all  contracts  or  combinations  in  re- 
straint of  trade  among  the  states,  whether  the 
restraint  is  reasonable  or  unreasonable.  Every 
agreement  aiming  at  monopoly  of  any  part  of 


48    LEGAL  DOCTRINE  AND  SOCIAL  PROGRESS 

interstate  commerce  or  tending  to  shut  out  com- 
petition in  such  commerce  is  void.  The  North- 
ern Securities  merger  did  this,  and  therefore 
came  within  the  prohibition  of  the  Sherman 
act.  Justice  Brewer  held  that  Congress  must 
be  presumed  to  have  meant  to  outlaw  only  such 
contracts  as  are  in  unreasonable  restraint  of 
trade,  but  the  Northern  Securities,  he  thought, 
constituted  an  unreasonable  restraint  of  inter- 
state commerce  and  was  within  his  interpreta- 
tion of  the  law.  Justice  Holmes  said  the  stat- 
ute was  a  penal  act,  and  could  not  be  held  to 
punish  as  a  crime  what  had  always  been  law- 
ful, unless  such  intent  is  expressed  in  clear 
words.  He  did  not  expect  to  hear  that  Mr. 
Morgan  could  be  sent  to  jail  for  buying  the 
majority  of  the  stock  in  two  or  more  railroads, 
and  such  purchases  as  an  individual  may  law- 
fully make,  a  corporation  may  be  authorized  to 
make. 

Final  and  most  far-reaching  decisions  are 
disputed.  The  act  says  nothing  about  compe- 
tition. It  covers  contracts  in  restraint  of  trade, 
and  these  limit  competition ;  but  a  contract  may 
result  in  limiting  competition,  as  in  case  of  a 
fusion,  and  yet  not  be  a  contract  in  restraint 
of  trade.  Justice  White  held  that  if  the  Sher- 
man act  applied  to  the  acquisition  of  the  stock 
of  two  or  more  railways  by  an  individual  or 


THE   LAW   IS   LIVE   AND   FLEXIBLE  49 

a  company,  the  enactment  was  beyond  the 
power  of  Congress.  The  power  of  Congress 
to  regulate  interstate  commerce  does  not  ex- 
tend to  dictation  of  the  ownership  of  properties 
engaged  in  interstate  commerce.  Chief  Justice 
Fuller  and  Justice  Peckham  also  dissented 
from  the  majority  decision,  but  filed  no  sepa- 
rate opinions,  though  there  were  still  one  or 
two  diverse  lines  of  argument  open  to  them. 
Four  for  literal  construction  and  enforcement ; 
five  against,  but  one  of  the  five  believing  a  lib- 
eral construction  still  covered  the  Northern 
Securities  case;  judgment  went  against  the 
company  by  a  vote  of  five  to  four. 

Different  courts  apply  the  law  with  directly 
opposite  results.  Judge  Landis  of  the  Federal 
district  court  in  Illinois  on  suit  of  the  U.  S. 
Department  of  Justice,  fined  the  Standard  Oil 
$29,240,000,  August  31, 1907,  for  taking  a  series 
of  rebates  from  the  Chicago  and  Alton.  But 
Judge  Grosscup  and  his  associates  in  the  Court 
of  Appeals  reversed  the  judgment,  July  22, 
1908,  and  remanded  the  case  for  another  trial, 
holding  that  Judge  Landis  erred  in  consider- 
ing each  car-load  rebate  a  separate  offense  and 
in  imposing  the  maximum  fine  for  the  first  of- 
fense, and  that  it  was  unreasonable  that  the 
Standard  Oil  Company  of  Indiana,  with  a  capi- 
tal of  $1,000,000,  should  be  fined  in  a  sum  twen- 


50    LEGAL  DOCTRINE  AND  SOCIAL  PROGRESS 

ty-nine  times  as  great  as  its  whole  capital 
stock  in  order  to  punish  the  parent  company, 
the  Standard  Oil  Company  of  New  Jersey, 
which  was  not  cited  as  a  defendant  in  the  case. 
Judge  Landis  cut  through  all  technicalities 
and  went  straight  to  the  heart  of  the  case.  He 
found  on  the  testimony  of  John  D.  Rockefeller 
himself  and  other  Standard  magnates  and  offi- 
cials that  the  Standard  Oil  Company  of  Indi- 
ana was  only  a  tool  in  the  hands  of  the  Stand- 
ard Oil  Trust,  which  really  got  the  rebates, 
and  that  during  the  three  years  in  which  the 
transactions  covered  by  the  indictments  oc- 
curred, the  earnings  of  the  Trust  amounted  to 
nearly  $200,000,000,  and  that  dividends  averag- 
ing 40%  a  year  were  paid  during  that  time. 
It  seems  a  mere  technicality  to  say  that  the  Oil 
Trust  was  not  before  the  Court.  If  a  man 
could  incorporate  each  of  his  fingers  and  toes 
and  one  of  the  fingers  was  caught  in  a  criminal 
act  and  indicted  by  its  corporate  name,  the 
man  would  be  the  real  defendant  and  substan- 
tially before  the  court  though  not  so  in  name. 
That  is  a  fair  illustration  of  the  Oil  Trust  in 
this  case,  and  the  Oil  Trust  knew  it  was  the 
real  defendant  and  fought  the  case  with  all  its 
might.  The  case  was  not  fought  by  the  Gov- 
ernment, however,  against  the  Oil  Trust,  but 
strictly  against  the  Indiana  Company,  the  de- 


THE   LAW   IS   LIVE   AND   FLEXIBLE  51 

fendant  named  in  the  record.  The  profits  of 
this  company  alone  were  $55,000,000  in  eight 
years,  a  very  large  part  of  which  undoubtedly 
consisted  of  rebates,  and  the  fine  was  probably 
not  excessive  even  as  against  the  Indiana  Com- 
pany alone  without  regard  to  its  identification 
as  an  arm  or  integral  part  of  the  big  Oil  Trust. 
The  shipments  were  by  the  carload,  and  the 
railroads  allowed  a  rebate  on  each  car.  A  bill 
of  lading  was  made  for  each  car,  so  the  Attor- 
ney General  of  the  United  States  and  the  Presi- 
dent and  the  Judge  naturally  regarded  the 
carload  as  the  unit  of  offense.  The  doctrine 
of  the  Court  of  Appeals,  that  each  settlement 
or  payment  of  rebates  constituted  the  unit  of 
offense,  leaves  it  to  the  shipper  and  the  rail- 
road to  decide  how  many  offenses  they  shall  be 
liable  to  be  prosecuted  for  and  how  much  they 
shall  be  fined.  Knowing  well  that  this  was  not 
the  first  offense,  but  that  the  Indiana  Company 
and  the  Standard  had  been  taking  rebates  in 
untold  numbers  from  all  the  big  railroads  for 
many  years,  and  were  among  the  most  invet- 
erate offenders  in  the  land,  he  used  his  dis- 
cretion to  impose  the  maximum  fine.  When  the 
case  goes  up,  as  we  hope  it  may,  it  will  be  in- 
teresting to  see  if  the  Federal  Supreme  Court 
will  hold  that  a  company  can  limit  its  criminal 
liability  by  the  amount  of  its  capital  stock,  or 


52    LEGAL  DOCTKINE  AND  SOCIAL  PEOGEESS 

if  a  giant  trust  can  escape  the  penalties  of  the 
law  by  organizing  little  subsidiary  companies 
to  take  the  rebates  from  the  railroads  and  pass 
them  up  to  the  controlling  corporation.  It  will 
also  be  interesting  to  note  whether  the  rebates 
on  a  trainload  constitute  but  one  offense  or 
whether  if  all  the  rebates  for  a  year  are  paid 
at  once,  there  is  only  one  offense  no  matter 
how  many  thousands,  or  hundreds  of  thousands 
of  dollars,  may  be  included  in  the  amount,  nor 
how  many  items  of  rebate,  as  figured  by  the 
railroads,  are  covered  by  the  account.73 

The  case  affords  an  excellent  illustration  of 
the  facility  with  which  judges  may  back  up  with 
legal  reasoning  whatever  opinions  their  mental 
attitude  and  feeling  may  lead  them  to  adopt 
upon  the  facts.  How  great  and  immediate  may 
be  the  influence  of  a  judicial  decision  on  indus- 
trial affairs,  is  indicated  by  the  press  reports 
to  the  effect  that  when  Judge  Landis  imposed 

?a  On  Nov.  16,  1910,  over  three  years  after  the  imposition  of 
the  celebrated  fine  by  Judge  Landis,  Judge  John  J.  McCall  of 
the  U.  S.  Circuit  Court,  practically  set  aside  the  fine  by  ruling 
that  the  settlement  of  freight  charges  constituted  the  offense 
and  not  the  various  freight  shipments.  This  ruling  diminished 
the  fine  by  $29,134,000.  He  also  held  tentatively  that  the 
"dates  in  the  indictment  should  correspond  to  proof  tendered," 
so  that  although  the  counsel  for  the  Standard  Oil  had  ac- 
knowledged the  guilt,  the  trust  stands  a  good  chance  to  en- 
tirely evade  every  dollar  of  the  fine  since  the  dates  in  the  in- 
dictment are  dates  of  shipment  rather  than  dates  of  settle- 
ment.    (Ed.) 


THE   LAW   IS   LIVE   AND   FLEXIBLE  53 

the  big  fine,  Standard  Oil  stock  went  down 
from  $650  to  $350,  diminishing  the  Stand- 
ard's values  by  hundred  of  millions;  and  that 
the  reversal  by  the  Court  of  Appeals  brought 
the  stock  up  again  from  $350  to  $650  a  share. 
In  one  hour,  it  is  said,  Standard  Oil  stock  rose 
in  value  $270,000,000,  and  altogether  it  rose,  on 
account  of  the  appeal  decision,  more  than 
$500,000,000. 

The  reason  and  letter  of  the  law  may  be 
contradictory.  Blackstone  says  that  the  rea- 
son of  the  law  is  the  law,  and  that  statutes 
should  be  enforced  according  to  their  spirit  and 
purpose,  or  the  cause  which  moved  the  legis- 
lator to  enact.  "For  when  this  reason  ceases, 
the  law  itself  ought  likewise  to  cease  with  it." 
He  illustrates  the  principle  as  follows :  ' '  There 
was  a  law,  that  those  who  in  a  storm  forsook 
the  ship  should  forfeit  all  property  therein; 
and  that  the  ship  and  lading  should  belong  en- 
tirely to  those  who  staid  in  it.  In  a  danger- 
ous tempest  all  the  mariners  forsook  the  ship, 
except  only  one  sick  passenger,  who  by  reason 
of  his  disease,  was  unable  to  get  out  and  escape. 
By  chance  the  ship  came  safe  to  port.  The 
sick  man  kept  possession  and  claimed  the  bene- 
fit of  the  law.  Now  here  all  the  learned  agree, 
that  the  sick  man  is  not  within  the  reason  of 
the  law;  for  the  reason  of  making  it  was  to 


54         LEGAL   DOCTRINE   AND   SOCIAL  PROGRESS 

give  encouragement  to  such  as  should  venture 
their  lives  to  save  the  vessel,  but  this  is  a  merit 
which  he  could  never  pretend  to  who  neither 
staid  in  the  ship  upon  that  account,  nor  con- 
tributed anything  to  its  preservation."  As 
the  reason  and  purpose  of  the  law  must  be  de- 
termined by  the  judge,  the  rule  that  a  law 
should  be  enforced  according  to  its  spirit 
rather  than  its  letter,  comes  back  to  the  funda- 
mental principle  that  the  interpretation  and  en- 
forcement of  the  law  are  functions  of  the 
thought  and  conscience  of  the  judge.  If  the 
question  is  whether  the  Sherman  Anti-trust  law 
prohibits  labor  unions,  a  judge  who  thinks  the 
spirit  and  purpose  of  the  law  is  not  to  prohibit 
beneficial  combinations,  but  only  those  that  are 
unreasonable  and  injurious  in  their  restraint 
of  trade,  and  who  believes  that  trade  unions  do 
not  belong  to  the  latter  class,  will  hold  that  the 
law  does  not  forbid  the  ordinary  labor  organ- 
ization; while  a  judge  who  thinks  trade  unions 
are  unreasonable  and  injurious  combinations, 
or  who  believes  the  purpose  of  the  law  is  to 
prohibit  all  combinations  in  restraint  of  trade 
whether  reasonable  or  not,  will  hold  the  Sher- 
man law  does  invalidate  trade  unions. 

A  still  greater  chance  for  flexibility.  Black- 
stone  further  says  in  substance  that  laws  are  to 
be  so  interpreted  as  to  avoid  absurd  and  un- 


THE   LAW   IS   LIVE   AND   FLEXIBLE  55 

just  consequences,  for  legislators  are  to  be  pre- 
sumed not  to  have  intended  to  produce  such 
consequences.  "Therefore,"  says  Blackstone, 
"the  Bolognian  law,  mentioned  by  Puff  en  do  rf, 
which  enacted  that  whoever  drew  blood  in  the 
streets  should  be  punished  with  the  utmost  se- 
verity, was  held  after  long  debate  not  to  ex- 
tend to  the  surgeon,  who  opened  the  vein  of 
a  person  that  fell  down  in  the  street  with  a  fit." 
The  rule  that  the  judge  may  interpret  the  law 
so  as  to  avoid  absurd  and  unjust  consequences, 
means  simply  that  the  judge  may  so  interpret 
the  law  as  to  avoid  doing  violence  to  his  own 
ideas  of  common  sense  and  justice.  If  the 
judge  thinks  it  is  just  and  reasonable  for  a 
city  taking  over  a  water  system  or  street  rail- 
way to  pay  not  only  the  value  of  the  prop- 
erty but  also  to  pay  for  the  franchise  estimated 
on  the  basis  of  earning  capacity  without  allow- 
ing for  the  probability  that  the  public  may 
exercise  its  right  to  regulate  rates  or  authorise 
competition,  he  will  so  order;  but  if  he  feel  it 
is  unjust,  unreasonable  and  absurd  to  adopt  a 
rule  which  on  a  long  term  or  perpetual  fran- 
chise would  lead  to  valuations  equaling  the  en- 
tire present  wealth  of  the  city  or  the  state,  he 
will  sustain  a  valuation  based  on  the  principle 
that  the  state  or  city  may  and  ought  to  reduce 
the  earning  capacity  to  a  reasonable  margin  by 


56    LEGAL  DOCTRINE  AND  SOCIAL  PROGRESS 

exercising  the  power  of  regulating  rates  or  au- 
thorizing competition.8 

Courts  sometimes  annul  the  reason  and  pur- 
pose of  the  law.  One  of  the  most  interesting 
and  instructive  illustrations  of  what  the  courts 
can  do  in  the  way  of  molding  the  law  and 
checkmating  the  legislature  is  to  be  found  in 
the  history  of  trusts  and  uses.  Parliament 
passed  a  law,  the  Statute  of  Mortmain,  forbid- 
ding the  tying  up  of  estates  in  perpetuity  in 
the  hands  of  the  Church  or  other  corporative 
bodies.  The  courts  held,  however,  that  if  an 
estate  were  deeded  to  A  to  the  use  of  B,  the 
beneficial  right  of  B,  not  being  an  estate  but 
merely  an  equitable  right  enforceable  in  chan- 

s  Long  Island  Water  Supply  Co.  v.  Brooklyn,  80  N.  Y.  Sup. 
(73  Hun),  499;  143  N.  Y.  596,  600;  166  U.  S.  685,  687,  691 
(1897).  The  company  franchise  had  fourteen  years  more  to 
run  and  it  claimed  that  it  would  earn,  above  all  outlay  and 
investment  and  interest,  over  $6,000,000  in  these  remaining 
fourteen  years.  But  the  commissioners  cut  down  the  valua- 
tion of  the  franchise  and  contracts  to  $200,000  on  the  prin- 
ciple that  it  would  be  the  right  and  duty  of  the  State  or  of 
the  City,  acting  under  its  permission,  to  prevent  such  excessive 
earnings  by  establishing  a  public  plant  or  authorizing  private 
competition  or  exercising  the  power  to  regulate  rates,  and 
this  view  was  sustained  by  the  Supreme  Court  and  Court  of 
Appeals  of  New  York  and  the  Supreme  Court  of  the  United 
States.  The  question  was  not  one  of  statutory  law  nor  was 
the  case  fully  reasoned  out,  but  the  facts  afford  an  excellent 
illustration  of  the  potency  of  the  principle  of  rejecting  a 
rule  of  action  or  provision  of  law  that  would  lead  to  absurd 
and  unreasonable  consequences. 


THE   LAW   IS   LIVE   AND   FLEXIBLE  57 

eery,  would  not  come  within  the  Statute  of 
Mortmain,  so  that  by  deeds  in  terms  of  a  use 
or  in  trust,  creating  an  equitable  title  in  the 
beneficiary  a  corporation  could  still  have  the 
whole  benefit  of  an  estate  in  perpetuity  sub- 
stantially as  if  it  held  the  legal  estate.    Under 
this  ruling  it  was  easy  to  evade  the  Statute  of 
Mortmain  and  break  through  the  barrier  of  the 
federal  system,  transferring  the  right  to  real 
estate  with  much  more  freedom  than  had  been 
formerly  possible.     To  prevent  this  Parliament 
passed  the  Statutes  of  Uses  executing  the  use 
in  the  beneficiary  so  that  he  should  have  the 
legal  estate  in  like  manner  and  degree  as  he 
had   the   use.     This   brought    the    case    again 
within  the  Statute  of  Mortmain.     But  the  law- 
yers simply  added  a  few  words  to  the  vital 
clauses  in  their  deeds  of  trusts.    Instead  of 
deeding  an  estate  to  A  to  the  use  of  B,  they 
deeded  to  A  to  the  use  of  B  to  the  use  of  C. 
And  the  courts  held  that  the  statute  executed 
the  first  use  but  not  the  second,  so  that  the 
legal  estate  went  to  B,  while  C  would  still  have 
the  beneficial  right  enforceable  in  equity  free 
from  the  Statutes  and  Uses  of  Mortmain. 

Courts  may  declare  law  void  on  certain 
grounds.  Not  only  can  courts  side-track  a 
statute  when  occasion  requires,  but  they  can 
often  nullify  a  law  by  declaring  it  void  either 


58    LEGAL  DOCTRINE  AND  SOCIAL  PROGRESS 

on  constitutional  grounds  or  on  broad  princi- 
ples of  justice  existing  independently  of  consti- 
tutional provisions.  For  example  a  legislature 
cannot  take  private  property  or  tax  the  people 
for  a  private  purpose,  but  only  for  a  public 
purpose.9  If  a  legislature  seeks  to  take  the 
property  of  A  in  order  to  give  it  to  B,  or  taxes 
A,  B,  C,  etc.,  in  order  to  give  the  money  to  a 
private  manufacturer  or  merchant,  our  courts 
have  held  that  such  an  act  is  void  as  beyond 
the  scope  of  legislative  power.10  It  is  not  a 
legislative  act  at  all,  but  an  act  of  usurpation. 
It  makes  no  difference  whether  the  constitu- 
tion says  anything  about  it  or  not.  The  pro- 
visions of  the  constitution  are  not  the  only  limi- 
tations on  legislative  power.  There  are  others 
that  inhere  in  the  very  substance  of  republican 
institutions,  underlying  the  constitution  as  es- 
sential to  the  very  purposes  for  which  the  con- 
stitutions exist,  and  therefore  impliedly  recog- 
nized by  the  creation  and  maintenance  of  said 
constitutions.11  The  cases  cited  and  many 
others  declare  that  legislative  power  is  limited 

»  U.  S.  Supreme  Court,  20  Wall,  at  664,  U.  S.,  487 ;  58  Me. 
590;  2  Dill.  353.  (Cooley  on  Taxation,  p.  116,  and  cases 
cited. ) 

io  Judge  Dillon  in  27  la.  51,  and  58  Me.  590.  (See  also  20 
Mich.  487.) 

ii  The  U.  S.  Supreme  Court  in  20  Wall.  (See  also  Judge 
Dillon  in  27  la.  51;  25  la.  540;  and  39  Pa.  St.  73.) 


THE   LAW   IS   LIVE   AND   FLEXIBLE  59 

by  the  great  principles  of  justice  for  the  en- 
forcement of  which  government  is  instituted, 
that  acts  in  violation  of  these  principles  will  be 
held  void  by  the  courts,  although  no  provision 
of  the  constitution  can  be  found  to  condemn 
them. 

Court  prevents  legislature  from  permitting 
cities  to  sell  coal.  On  the  question  whether  the 
legislature  can  authorize  cities  to  establish 
municipal  fuel  yards  to  sell  coal  and  wood  at 
reasonable  prices,  the  majority  of  the  Massa- 
chusetts Supreme  Court 12  stated  the  opinion 
that  the  legislature  could  not  give  such  author- 
ity because  the  buying  and  selling  of  fuel  is 
not  a  public  purpose,  the  ground  of  decision 
being  that  buying  and  selling  coal  did  not  differ 
from  buying  and  selling  other  commodities  in 
general,  and  the  judges  thought  it  would  be  bad 
policy  to  open  the  door  for  municipalities  to 
go  into  mercantile  business.  If  they  could  sell 
wood  and  coal,  why  not  dry  goods,  groceries, 
hats  and  caps,  boots  and  shoes,  and  everything 
else.  To  hold  this  a  public  purpose  would  be 
to  open  the  way  to  Socialism  and  destroy  the 
distinction  between  public  and  private  purpose 
— anything  the  public  chose  to  undertake  would 
be  a  public  purpose.  In  a  strong  dissenting 
opinion  Justice  Oliver  Wendell  Holmes,  now  a 

12  Opinion  of  Justices,  155  Mass.  601. 


60    LEGAL  DOCTRINE  AND  SOCIAL  PROGRESS 

Justice  of  the  Supreme  Court  of  the  United 
States,  used  these  words : 

Justice  Holmes's  dissenting  opinion.  "I  am 
of  opinion  that  when  money  is  taken  to  enable 
a  public  body  to  offer  to  the  public  without  dis- 
crimination an  article  of  general  necessity,  the 
purpose  is  not  less  public  when  that  article  is 
wool  or  coal  than  when  it  is  water  or  gas  or 
electricity  or  education,  to  say  nothing  of  cases 
like  the  support  of  paupers,  or  the  taking  of 
land  for  railroads  or  public  markets."  In 
150  Mass.  592,  the  Supreme  Court  held  that 
the  legislature  could  grant  municipalities  the 
right  to  make  and  sell  gas  and  electricity,  on 
the  ground  of  the  general  convenience  of  the 
service,  the  impracticability  of  each  individual's 
rendering  the  service  for  himself,  and  the 
necessity  of  using  the  streets  in  a  special  way, 
or  exercising  the  right  of  eminent  domain; 
whereas  the  buying  and  selling  of  coal  and  wood 
does  not  require  special  use  of  the  streets,  nor 
the  right  of  eminent  domain,  nor  the  exercise 
of  any  other  franchise  or  authority  derived  from 
the  legislature.  In  dealing  with  sewers,  water, 
gas  and  electric  works,  etc.,  courts  have  sought 
to  strengthen  their  conclusions  by  reference  to 
the  necessity  of  a  special  use  of  the  streets,  or 
other  action  requiring  legislative  authority; 
but  they  did  not  decide  that  a  purpose  could 


THE   LAW   IS   LIVE   AND   FLEXIBLE  61 

not  be  a  public  one  without  this  element;  on 
the  contrary,  schools,  libraries,  museums,  lodg- 
ing houses,  hospitals,  baths,  scales,  markets, 
etc.,  do  not  require  any  special  use  of  the  streets 
nor  any  franchise  or  rights  of  eminent  domain, 
but  can  be  established  by  any  one  without  legis- 
lative authority.  As  to  impracticability,  it 
is  as  impracticable  for  each  individual  to  es- 
tablish a  coal  yard,  and  get  coal  from  the  mines 
at  reasonable  rates,  as  it  would  be  for  each  in- 
dividual to  supply  himself  with  schools,  libra- 
ries, baths,  hay-scales,  etc. 

In  New  Zealand  there  are  not  only  public 
coal  yards,  but  public  coal  mines  also,  owned 
and  operated  by  and  for  the  people. 

Personal  attitude  of  judges  has  great  signifi- 
cance. The  prejudice  of  a  judge  against 
anything  that  looks  like  Socialism  may  govern 
his  interpretation  of  the  law  and  limit  the 
powers  of  municipalities  and  the  legislature; 
while  the  favorable  attitude  of  other  judges 
toward  public  activities  will  give  the  law  the 
color  of  their  more  liberal  thought,  broaden 
the  meaning  of  ''public  purpose,"  and  widen 
the  scope  of  municipal  and  legislative  authority. 
Truly  the  personnel  of  the  judiciary  is  of  in- 
calculable importance;  the  very  heart  of  the 
problem  of  government;  the  key  to  justice, 
liberty,  progress,  and  civilization.    The  make- 


62         LEGAL   DOCTRINE   AND   SOCIAL  PROGRESS 

up  of  the  United  States  Supreme  Court  and 
the  courts  of  last  resort  in  the  various  states, 
is  of  vastly  greater  moment  than  the  character 
of  Congress  or  legislature,  Governor  or  Presi- 
dent, vital  as  the  influence  of  all  these  civic 
factors  undoubtedly  is. 

Courts  more  powerful  than  legislatures.  Il- 
lustrations of  the  point  we  are  considering 
could  be  multiplied  indefinitely,  but  one  more 
of  special  interest  will  be  sufficient  here. 

It  relates  to  the  limitation  of  legislative 
authority  by  principles  recognized  by  the 
courts  as  fundamental  principles  of  justice  in- 
herent in  a  system  of  free  government  though 
not  stated  or  enforced  by  any  provision  of  the 
constitution.  In  People  v.  Hurlbur  13  for  in- 
stance, Chief  Justice  Campbell  and  Justices 
Cooley  and  Christiancy  held  that  the  legisla- 
ture could  not  appoint  a  board  of  public  works 
to  control  the  public  buildings,  pavements, 
sewers,  water  works,  engine  houses,  etc.,  in 
the  city  of  Detroit  although  no  express  pro- 
vision of  the  constitution  negatived  the  act. 
The  court  held  that  there  is  a  clear  distinction 
between  "what  concerns  the  state  and  that 
which  does  not  concern  more  than  one  locality." 
The  people  of  a  city  or  town  have  a  right  to 
the  management  of  their  local  concerns  and  the 

13  24  Mich.  44  (1871). 


THE   LAW   IS   LIVE   AND   FLEXIBLE  63 

selection  of  their  local  officers  who  are  to  con- 
trol such  concerns,  and  this  right  cannot  be 
taken  from  them  by  the  legislature,  for  it  rests 
upon  the  principle  of  self-government,  which 
is  inherent  in  free  institutions,  and  underlies 
the  constitution  as  the  purpose  for  which  the 
constitution  was  established.  Chief  Justice 
Campbell  distinguishes  (People  v.  Mahaney,  15 
Mich.  492,)  where  the  validity  of  an  act  estab- 
lishing state  control  of  city  police  is  sustained, 
saying  the  question  was  "whether  the  police 
board  is  a  state  or  municipal  agency,"  and 
added,  "I  think  it  is  clearly  an  agency  of  the 
state  government.  .  .  .  There  is  a  clear 
distinction  in  principle  between  what  concerns 
the  state  and  that  which  does  not  concern  more 
than  one  locality.  .  .  .  There  is  no  dispute 
concerning  the  character  of  the  public  works 
act.  Its  purposes  are  directly  and  evidently 
local  and  municipal." 

In  Board  of  Park  Commissioners  v.  De- 
troit,14 where  the  legislature  appointed  state  of- 
ficers to  buy  land  and  improve  it  for  a  park 
for,  and  at  the  expense  of,  the  city  of  Detroit, 
Judge  Cooley  said:  "We  affirm  that  the  city 
of  Detroit  has  the  right  to  decide  for  itself  upon 
the  purchase  of  a  public  park.  It  is  as  easy 
to  justify,  on  principle,  a  law  which  permits 

"28  Mich.  228  (1873). 


64         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

the  rest  of  the  community  to  dictate  to  an  in- 
dividual what  he  shall  eat,  and  what  he  shall 
drink,  and  what  he  shall  wear,  as  to  show  any- 
constitutional  basis  for  one  under  which  the 
people  of  other  parts  of  the  state  dictate  to  the 
city  of  Detroit  what  fountains  shall  be  erected 
at  its  expense  for  the  use  of  its  citizens,  or 
at  what  cost  it  shall  purchase,  and  how  it  shall 
improve  and  embellish,  a  park  or  boulevard  for 
the  recreation  and  enjoyment  of  its  citizens." 

Two  views  of  judicial  control  over  legisla- 
tion. In  State  v.  Denny,15  an  act  creating  a 
board  of  public  works  to  be  appointed  by  the 
legislature,  and  to  have  control  over  streets, 
alleys,  sewers,  water  works  and  lights,  was  held 
invalid  as  infringing  the  right  of  local  self-gov- 
ernment inherent  in  municipal  corporations 
under  our  system  of  free  institutions.  The 
right  of  local  self-government  antedated  the 
constitution  and  was  not  surrendered  by  it. 
Judge  Coffey,  citing  Cooley  on  Constitutional 
Limitations,  5th  ed.,  page  208,  says: 

"It  does  not  follow  that  in  every  case  the 
courts,  before  they  can  set  aside  a  law  as  in- 
valid, must  be  able  to  find  in  the  constitution 
some  specific  inhibition  which  has  been  disre- 
garded.   .    .    .    The  constitution  must  be  con- 

15  118  Ind.  382    (1888). 


THE   LAW   IS   LIVE   AND   FLEXIBLE  65 

sidered  in  the  light  of  the  local  and  state  gov- 
ernments existing  at  the  time  of  its  adoption. 
.  .  .  The  principles  of  local  self-govern- 
ment constitute  a  prominent  feature  in  both 
the  federal  and  state  governments.  ...  It 
existed  before  the  creation  of  any  of  our  consti- 
tutions, national  or  state,  and  all  of  them  must 
be  deemed  to  have  been  formed  in  reference 
to  it,  whether  expressly  recognized  in  them  or 
not." 

For  the  contrary  view  enforced  in  some  other 
states  take  this  statement  from  the  Massachu- 
setts Supreme  Court.  "It  is  suggested,  though 
not  much  insisted  on,  that  the  statute  of  1885, 
c.  323,  is  unconstitutional,  because  it  takes  from 
the  city  the  power  of  self-government  in  mat- 
ters of  internal  policy.  We  find  no  provision 
in  the  constitution  with  which  it  conflicts,  and 
we  cannot  declare  an  act  of  the  legislature  in- 
valid because  it  abridges  the  exercise  of  the 
privilege  of  local  self-government  in  a  particu- 
lar in  regard  to  which  such  privilege  is  not 
guaranteed  by  any  provision  of  the  constitu- 
tion.16 " 

The  law  under  consideration  in  this  case  es- 
tablished a  state  police  for  Boston,  and  so  was 
not  within  the  limits  of  Michigan  and  Indiana 

16  148  Mass.  375>  at  383-6. 


66         LEGAL  DOCTRINE  AND  SOCIAL  PROGRESS 

decisions,  but  the  reason  covered  the  whole 
field,  and  is  often  referred  to  as  authority; 
against  the  Michigan  doctrine. 

A  precedent  for  almost  anything  and  a  way 
to  set  aside  almost  any  precedent.  It  is  true 
that  it  is  not  always  possible  to  frame  a  legal 
argument  for  the  decision  the  judge  regards  as 
just  and  right  on  the  facts  of  the  case  at  hand. 
For  the  sake  of  stability  in  the  law,  and  the  pro- 
tection of  rights  that  have  grown  up  under 
former  decisions,  a  judge  may  feel  constrained 
to  follow  a  precedent  which  he  does  not  regard 
as  wholly  just  and  would  not  have  agreed  to 
if  he  had  been  on  the  bench  that  made  the  ruling 
in  the  leading  or  governing  case.  But  this  is 
not  the  usual  situation.  A  good  judge  is  al- 
ways exceedingly  averse  to  putting  himself  on 
record  with  a  decision  he  deems  unjust  upon  the 
facts  and  he  will  not  do  so  if  he  can  reasonably 
avoid  it,  as  he  generally  can.  With  the  courts 
of  forty-six  states  and  several  English  speaking 
jurisdictions  handing  down  decisions  at  the  rate 
of  several  hundred  bulky  volumes  every  year,  it 
is  not  difficult  to  find  authority  and  reason  for 
almost  any  practicable  view;  and  even  when 
certain  precedents  seem  to  stand  in  the  way  of 
the  judgment  the  court  would  like  to  render, 
these  can  often  be  distinguished  from  the  case 
at  bar  by  some  slight  difference,  or  perhaps 


THE   LAW   IS   LIVE   AND   FLEXIBLE  67 

quite  marked  and  vital  difference  in  the  facts 
and  circumstances.  The  multiplicity  of  prin- 
ciples and  precedents  enables  the  judge  of 
ability  and  vigor  to  make  his  conceptions  of 
justice  and  the  formal  law  go  hand  in  hand  by 
the  due  selection  and  emphasis  of  the  appro- 
priate legal  principles  and  precedents;  and  if 
need  be  the  judge  can  directly  overrule  a  prec- 
edent that  stands  in  the  way  of  justice  as  he 
sees  it. 


V, 


FUNDAMENTAL  EIGHTS  AND  EESPONSIBILITIES  AS  DE- 
FINED BY  THE  LAW  AKE  BASED  UPON  REASON  AND 
THE  NATUEE  OF  THINGS. 

Both  the  written  and  unwritten  law  deals  with 
rights  and  wrongs.  Rights  are  divided  into 
rights  of  persons  and  rights  of  things,  or  more 
accurately  speaking  -  into  right  of  persons  in 
their  general  relations  to  each  other,  and 
the  rights  of  persons  in  their  relations  to 
property.  The  general  rights  of  persons  fall 
into  two  divisions,  primary  and  secondary. 
The  primary  general  rights  consist  of  those 
fundamental  personal  rights  that  lie  at  the 
basis  of  the  whole  social  structure. 

Primary  general  rights  of  persons.  (1)  Se- 
curity.  The  right  of  life,  limb,  health,  reputa- 
tion, reasonable  comfort  and  peace  of  mind. 
The  right  to  personal  safety  against  bodily  ag- 
gression of  every  form  is  so  carefully  guarded 
by  the  law  that  the  slightest  impact  upon  or  con- 
tact with  the  person  of  another  is  actionable 
unless  such  impact  or  contact  is  by  permission 
expressly  implied  or  clearly  justified  as  incident 

68 


BIGHTS   AND  WKONGS   DETEKMINE   THE   LAW        69 

to  the  exercise  of  a  legal  right  or  in  the  execu- 
tion of  the  law.  Suit  may  be  brought  for  an 
unpermitted  kiss,  or  blowing  one's  breath  in  an- 
other's face,  or  jostling  a  person  or  thing 
against  him,  or  kicking  the  horse  attached  to 
the  wagon  in  which  he  is  sitting  so  that  his 
person  is  jarred,  even  the  attempt  at  wrongful 
impact  on  the  person  of  another  is  prohibited 
and  punished  by  the  law,  and  this  whether  the 
danger  be  real  or  only  apparent  (as  in  case  of 
the  threatening  use  of  an  unloaded  pistol)  if 
the  person  is  within  reach  of  the  method  of  at- 
tack resorted  to. 

(2)  Liberty.  The  right  to  free  locomotion, 
free  speech,  freedom  of  the  press,  and  freedom 
of  action  in  every  particular  so  long  as  the 
rights  of  others  are  not  infringed.  Even  the 
rights  of  free  locomotion  and  of  free  speech 
are  not  without  bounds  but  are  subject  to  such 
limitations  as  are  necessary  to  safe-guard  the 
rights  of  others — the  man  has  no  right  to  tres- 
pass on  his  neighbor's  land  or  rob  him  of  his 
reputation  by  slander  or  libel. 

(3)  Equality.  The  right  to  equality  before 
the  law,  equal  opportunity  and  impartial  treat- 
ment so  far  as  concerns  the  action  and  influ- 
ence of  law  and  government  or  of  public  or 
quasi-public  agencies  created  and  controlled  by 
them  or  of  any  agencies  performing  public  or 


70    LEGAL  DOCTKINE  AND  SOCIAL  PEOGRESS 

quasi-public  functions.  Unjust  legislation  in 
A's  private  interest,  a  false  judgment  in  his 
behalf  obtained  by  fraud  or  money  or  personal 
favor,  and  an  advantage  over  rival  shippers  by 
means  of  railroad  rebates,  are  all  violations 
of  the  fundamental  right  of  equality. 

(4)  Contract.  The  right  to  make  agree- 
ments and  cooperate  with  others  for  any  pur- 
pose that  is  not  contrary  to  the  public  good. 

(5)  Property.  The  right  to  create,  acquire, 
hold,  use,  and  dispose  of  property  according  to 
all  the  methods  recognized  by  law. 

(6)  Justice.  Equality  of  benefit  to  service 
rendered;  equality  of  burden  to  benefit  re- 
ceived; due  encouragement  of  beneficial  con- 
duct and  promise,  and  due  repression  of  detri- 
mental conduct  and  promise,  diffusion  and 
equalization  of  accidents,  burdens  and  benefits 
so  far  as  they  are  independent  of  the  conduct 
of  the  persons  affected.  The  ideal  of  justice  is 
that  every  man  should  receive  the  natural  con- 
sequences of  his  own  conduct  but  should  not 
be  either  burdened  or  benefited  beyond  his  fel- 
lows by  conditions  for  which  he  is  not  re- 
sponsible. Justice  consists  of  the  series  of 
equalities  that  results  from  the  due  appoint- 
ment of  those  elements  of  life  that  depend  on 
individual  conduct  such  as  wealth,  position,  rep- 
utation, power,  punishment,  etc.,  and  the  due 


RIGHTS   AND   WRONGS   DETERMINE   THE   LAW        71 

diffusion  of  those  elements  that  are  more  or  less 
independent  of  individual  conduct,  such  as  dis- 
tance, climate,  accidents,  social  forces,  the  ac- 
cumulated knowledge  of  the  past  and  all  the 
benefits  and  burdens  bequeathed  by;  former 
generations  to  the  present. 

The  principle  of  proportionality.  The  prin- 
ciple of  proportion  is  the  essence  of  justice  in 
the  encouragement  of  good  and  the  repression 
of  evil.  One  whose  conduct  is  very  beneficial 
to  society  should  receive  a  greater  reward  than 
one  whose  life  is  only  slightly  beneficial,  in  order 
to  maintain  the  due  equivalence  between  the 
degree  of  encouragement  and  the  beneficial 
quality  of  conduct, — if  this  is  not  done  the  social 
pressure  pushing  men  to  live  the  life  of  higher 
usefulness  is  lost.  One  whose  conduct  is  very 
detrimental  to  society  should  be  subjected  to  a 
greater  degree  of  repression  than  one  whose 
conduct  is  only  slightly  detrimental,  in  order 
to  maintain  the  equivalence  between  repression 
and  wrong-doing,  otherwise  there  is  no  ob- 
ject to  the  wrong-doer  to  limit  or  suppress 
his  evil  tendencies.  A  man  who  makes  a  great 
invention  or  renders  a  great  public  service 
should  receive  a  larger  reward  in  wealth,  social 
consideration,  etc.,  than  one  whose  life  is  of 
little  or  no  benefit  to  the  community;  and  one 
who  commits  murder  should  receive  a  greater 


72    LEGAL  DOCTRINE  AND  SOCIAL  PROGRESS 

punishment  than  one  who  steals  a  loaf  of  bread. 
This  right  to  justice  involves  all  the  preceding 
rights  and  more. 

There  is  nothing  absolute  about  any  of  these 
rights,  not  even  the  rights  to  security,  liberty 
and  justice.  A  man  may  forfeit  the  right  to 
liberty  by  wrong-doing,  or  it  may  be  modified 
and  limited  to  any  extent  that  may  be  necessary 
for  the  public  good.  A  man's  person  may  be 
taken  by  the  law  for  the  public  defense  or  to 
aid  in  the  administration  of  justice.  Even 
justice  itself  may  be  departed  from  and  some 
wrong  done  to  individual  citizens  for  the  sake 
of  a  larger  public  good  as  where  innocent  per- 
sons are  compelled  to  appear  as  witnesses  or 
jurymen  in  criminal  cases  often  to  their  serious 
inconvenience  and  injury. 

Secondary  rights  of  persons.  The  secondary 
general  rights  of  persons  are: 

(1)  Protection.  The  right  to  the  full  pro- 
tection of  law  and  government  in  the  enjoy- 
ment of  all  rights  free  from  aggression  of  every 
kind,  direct  or  indirect. 

(2)  Redress.  The  right  to  adequate  and 
speedy  redress  for  all  wrongs  within  the 
recognition  of  the  law. 

(3)  Fair  trial.  The  right  to  a  fair  trial  be- 
fore an  impartial  tribunal  without  unreason- 
able delay  or  expense. 


EIGHTS   AND   WRONGS   DETERMINE   THE   LAW        73 

(4)  Self-defense,  etc.  In  case  of  burglary, 
robbery,  assault  and  battery  and  other  cases  of 
emergency,  when  there  is  no  time  or  opportunity 
to  secure  protection  from  the  public  authorities, 
or  the  protection  of  the  law  proves  inadequate, 
the  citizen  may  defend  himself,  his  family  and 
his  property  with  all  the  force  that  is  reason- 
ably necessary  under  the  circumstances ;  and  he 
may  also  in  such  emergency  cases,  defend  the 
persons  and  property  of  others  from  aggres- 
sion. 

Special  rights  of  persons.  The  special  rights 
of  persons  are  those  growing  out  of  particular 
relationships,  public  and  private,  such  as  the 
relations  of  Governors,  Legislators,  Mayors, 
Councilmen,  Judges,  Police,  etc.,  with  each  other 
and  with  the  people,  the  relations  of  persons  as 
aliens  or  natives,  and  their  relations  as  husband 
and  wife,  parent  and  child,  guardian  and  ward, 
teacher  and  pupil,  master  and  servant,  principal 
and  agent,  etc.  These  rights  and  others 
mentioned  below  will  be  dealt  with  later  in  the 
book  as  far  as  necessary  to  our  purpose. 

Rights  of  artificial  persons.  So  far  we  have 
been  dealing  with  the  rights  of  natural  persons. 
The  rights  of  artificial  persons  or  corporations 
public  and  private,  depend  on  their  charters,  the 
statutes  which  control  them  and  such  constitu- 
tional provisions  as  may  apply  to  them. 


74         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

Rights  of  things.  The  rights  of  things  con- 
sist in  dominion  over  real  estate  and  personal 
property.  This  department  of  the  law  treats 
of  estates  and  interests  in  property,  and  the 
methods  by  which  such  interests  may  be  gained 
or  lost  by  act  of  the  parties  or  by  act  of  law. 

Public  and  private  wrongs.  Wrongs  are 
divided  into  public  wrongs  and  private  wrongs. 
Public  wrongs  or  crimes  and  misdemeanors  are 
wrongs  of  so  serious  a  character  to  society  that 
the  law  attaches  a  penalty  to  them  in  addition 
to  whatever  redress  the  persons  especially  in- 
jured may  seek  to  obtain;  such  wrongs  will  be 
prosecuted  and  punished  by  public  authorities 
acting  on  behalf  of  the  state. 

Private  wrongs  are  of  two  classes:  (1) 
Breaches  of  Contract,  and  (2)  Torts  or  viola- 
tions of  right  existing  independently  of  contract, 
and  including  all  private  wrongs  other  than  the 
mere  breach  of  contract.  The  same  act  may  be 
a  tort  and  also  a  breach  of  contract,  as  in  case 
of  a  breach  of  warranty ;  but  if  the  act  is  wrong 
only  because  it  breaks  a  contract — if  it  is  not 
a  violation  of  any  right  existing  independently 
of  contract  as  in  case  of  A's  refusal  to  con- 
struct a  house  he  had  agreed  to  build  for  B — 
the  act  is  not  a  tort  but  only  a  breach  of  con- 
tract.   The  same  act  may  also  be  a  crime  as 


RIGHTS   AND   WRONGS    DETERMINE    THE    LAW         75 

well  as  a  tort,  as  in  case  of  seduction,  libel, 
nuisance,  assault  and  battery,  etc. 

Civil  and  criminal  law.  A  division  of  the  law 
should  be  mentioned  in  this  connection  which 
runs  across  the  line  that  separates  the  written 
from  the  unwritten  law — the  division  into 
criminal  law  and  civil  law.  The  criminal  law 
deals  with  public  wrongs,  and  its  objects  are: 
(1)  Eetribution  (2)  Prevention  (3)  Beforma- 
tion. 

The  principal  business  of  the  civil  law  in  this 
relation  is  the  redress  of  private  wrongs — the 
redistribution  of  loss  caused  by  detrimental 
conduct  so  that  the  loss  resting  upon  innocent 
or  comparatively  innocent  persons  by  reason  of 
such  conduct  may  be  transferred  to  the  guilty 
parties. 

Redress  of  private  wrongs. — Contributory 
negligence.  If  both  parties  are  in  fault  in  sub- 
stantially equal  degree  in  relation  to  the  loss, 
the  law  will  not  intervene  but  will  let  the  loss 
rest  where  it  has  fallen.  To  use  the  machinery 
of  the  law  to  transfer  loss  from  one  party  in 
fault  to  another  party  equally  in  fault,  would 
not  seem  wise  or  just  to  the  community.  To 
have  a  loss  fall  on  the  wrong-doer  A  would  do 
no  more  for  the  repression  of  evil  than  to  have 
the  loss  fall  on  the  equal  wrong-doer  B,  and 


76         LEGAL   DOCTRINE   AND   SOCIAL  PROGRESS 

public  moneys,  the  time  of  courts  and  public  of- 
ficers, etc.,  would  be  expended  for  nothing. 
This  is  the  philosophic  basis  of  the  principles 
in  pari  delictu,  and  contributory  negligence.  It 
might  be  agreed  that  when  both  parties  are  at 
fault  the  loss  should  be  divided  between  them. 
For  instance,  if  a  railroad  train  is  thrown  from 
the  track  by  a  negligent  misplacement  of  a 
switch,  and  a  passenger  standing  on  the  plat- 
form of  a  car  in  violation  of  the  company's 
rules  and  the  plain  dictates  of  ordinary  pru- 
dence, has  his  leg  broken  and  suffers  a  loss  of 
$10,000  in  time  and  costs,  it  might  seem  fair 
that  the  company  should  bear  half  the  loss  at 
least.  The  doctrine  of  contributory  negligence 
is  used  however  to  compel  the  loss  to  remain  in 
entirety  where  it  has  fallen. 

Plaintiff  must  have  "clean  hands."  It  is  a 
rule  of  equity  that  the  petitioner  must  come 
into  court  with  clean  hands.  The  plaintiff 
must  come  before  the  bar  of  justice  substan- 
tially free  from  fault  in  relation  to  the  loss  or 
injury  complained  of.  "Where,  however,  one 
party  is  much  more  in  fault  than  the  other  and 
the  loss  has  fallen  on  the  latter,  the  law  will 
intervene  to  put  the  loss  on  the  person  most 
in  fault.  As  if  a  near-sighted  man  walking 
without  his  glasses  falls  into  a  coal  hole  negli- 
gently left  open  in  the  pavement,  or  is  struck 


RIGHTS   AND   WRONGS   DETERMINE   THE   LAW        77 

while  crossing  the  street  by  a  carelessly  driven 
automobile,  the  fact  that  he  left  his  glasses  at 
home  would  not  prevent  his  recovery. 

The  grounds  of  liability.  The  grounds  of 
liability,  or  foundations  on  which  suits  for 
damages  may  be  brought  in  tort  and  contract, 
are  causation,  contract,  control  and  benefit  of 
the  service,  and  best  position  to  prevent  the 
loss.  Causation  of  the  loss  or  injury  may  be 
by  willful  wrong,  negligent  wrong  or  insane 
wrong.  An  insane  person  cannot  be  held  re- 
sponsible in  the  sense  that  underlies  the  efforts 
of  the  law  to  mold  human  conduct  through  the 
trans-intellectual  effects  of  punishment  or  re- 
dress ;  but  the  property  of  an  insane  person  may 
be  held  for  his  torts  on  the  principle  that  where 
a  loss  must  fall  on  one  of  two  equally  innocent 
persons,  it  must  be  borne  by  the  one  who  caused 
it  or  was  in  the  better  position  to  prevent  it. 

Expressed  contracts.  Liability  on  express 
contract  rests  upon  the  ground  that  stability, 
certainty  and  provision,  and  in  fact  the  whole 
network  of  business  and  social  interests,  re- 
quire that  men  should  be  able  to  rely  on  the 
definite,  well-considered  promises  of  their  fel- 
lows. Modern  business  is  built  on  that  founda- 
tion. Some  have  expressed  the  belief  that 
agreements  would  be  fulfilled  as  well  or  better 
without  legal  sanction.    They  say  that  if  the 


78         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

matter  were  left  to  honor  no  one  who  broke 
his  promise  would  be  trusted  the  second  time 
so  that  the  motive  to  fulfillment  of  agreement 
would  be  stronger  than  at  present.  It  is  clear, 
however,  that  in  our  complex  civilization  where 
men  are  constantly  moving  about  from  state  to 
state  and  business  relations  extend  from  ocean 
to  ocean  and  from  continent  to  continent,  it 
would  be  a  serious  handicap  if  the  sole  reliance 
had  to  be  placed  on  personal  honor.  The  busi- 
ness world  already  carefully  attends  to  the 
question  of  honor  and  scrutinizes  a  man's  rec- 
ord as  thoroughly  as  possible  before  trusting 
him,  but  it  nevertheless  needs  very  much,  and 
values  very  highly  the  additional  safeguards 
of  the  law,  especially  the  right  to  proceed 
against  the  property  of  those  who  fail  to  fulfill 
their  contracts.  The  history  of  traffic  agree- 
ments among  railroad  managers  in  the  United 
States  shows  that  even  men  of  the  highest  rank 
in  the  business  world  would  come  together  time 
after  time  and  make  agreements  of  honor  and 
then  go  right  out  and  secretly  break  those  agree- 
ments because  there  was  no  legal  sanction  to 
hold  them  and  their  railroads  liable  for  the 
breach.  A  reference  to  the  marriage  contract 
will  make  the  effect  of  an  absence  of  legal 
sanction  equally  clear,  for  one  can  easily  im- 
agine the  facility  of  annulment  that  would*  re- 


BIGHTS   AND   WRONGS   DETERMINE   THE   LAW        79 

suit  if  the  binding  force  of  the  marriage  con- 
tract rested  solely  upon  honor  in  the  present 
stage  of  human  development. 

Implied  contracts.  Implied  contracts  rest 
upon  fair  inference  from  the  words  and  con- 
duct of  the  parties,  or  upon  a  legal  friction  or 
presumption  of  an  agreement  to  fulfill  some 
duty  or  obligation  recognized  by  the  law;  as 
the  duty  of  rendering  an  equivalent  for  benefit 
received  or  accepted  under  circumstances  show- 
ing it  was  not  intended  as  a  gratuity.  If  a  man 
goes  into  a  restaurant,  orders  a  dinner  and  eats 
it,  the  law  implies  a  promise  to  pay  for  it,  un- 
less he  came  as  the  guest  and  at  the  invitation 
of  the  proprietor.  So  if  a  railroad  newsboy 
distributes  boxes  of  candy  among  the  pas- 
sengers, calling  "Huyler's  chocolates,  30  cents 
a  box"  and  a  passenger  opens  a  box  and  begins 
to  eat  the  contents,  the  law  will  imply  a  promise 
to  pay. 

Control.  Control  is  the  principle  that  under- 
lies the  liability  of  a  master  for  the  conduct  of 
a  servant  in  his  employ.  The  master  should 
bear  the  losses  incident  to  activities  carried  on 
for  his  benefit  and  under  his  direction  and  con- 
trol. A  master  or  employer  is  responsible  for 
the  acts  of  his  servant  or  employe  when  those 
acts  are  done  by  his  direction  or  authority,  with 
his  assent  or  ratified  by  him,  where  they  involve 


80         LEGAL   DOCTEINE   AND   SOCIAL  PEOGEESS 

a  breach  of  the  employer 's  contract,  or  are  done 
within  the  scope  of  the  business  for  which  the 
servant  was  employed.  If  the  servant  goes  out- 
side of  the  master's  business  to  accomplish  a 
purpose  of  his  own  the  employer  is  not  liable. 
But  if  the  servant  is  acting  within  the  sphere 
of  activity  in  which  the  employer  put  him,  the 
latter  is  responsible.  The  master  has  given  the 
servant  the  opportunity  and  power,  the  service 
is  carried  on  for  the  master's  benefit,  therefore 
the  master  must  be  responsible.  So  far  as  the 
acts  of  the  servant  result  from  or  are  made  pos- 
sible by  his  employment,  are  involved  in  or  are 
incidental  to  the  service,  are  performed  while 
carrying  on  this  service,  or  while  acting  in 
general  furtherance  of  the  master's  business, 
the  master  is  liable. 

A  denned  realm  of  responsibility.  If  the 
driver  of  M's  team  leaves  it  in  the  street  and 
goes  into  a  saloon  to  get  a  drink  and  while  there 
falls  into  a  quarrel  and  commits  assault  and  bat- 
tery, his  employer  is  not  liable,  for  the  servant 
has  gone  outside  the  master's  business  to  ac- 
complish a  purpose  of  his  own.  But  if  while 
driving  M's  team  the  servant  runs  over  a  boy 
or  strikes  him  with  his  whip,  or  collides  with 
another  vehicle  either  negligently  or  on  purpose, 
the  master  is  liable,  for  the  injury  was  done 
while  the  employe  was  acting  in  the  employer's 


EIGHTS   AND   WRONGS   DETERMINE   THE   LAW        81 

business.  It  is  sometimes  said  that  the  par- 
ticular act  must  be  in  specific  furtherance  of 
the  master's  business  or  he  will  not  be  liable. 
But  this  is  not  true ;  it  is  sufficient  if  the  servant 
is  acting  at  the  time  in  the  general  furtherance 
of  the  employer's  business.  If  an  engineer 
loses  his  hat  in  a  gust  of  wind,  and  to  get  it 
runs  his  engine  back  so  negligently  as  to  smash 
into  a  passenger  car  and  injure  one  or  more 
of  the  occupants,  the  company  is  clearly  liable 
although  the  particular  act  was  for  the  engi- 
neer's own  purpose  and  not  his  specific  fur- 
therance of  the  company's  business.  So  if  a 
conductor  uses  his  authority  to  annoy  a  per- 
sonal enemy  on  the  train,  or  kicks  off  a 
boy  who  incurs  his  anger,  or  kisses  a  woman 
passenger  against  her  will,  these  acts  are  for 
his  own  purposes  and  not  in  furtherance  of 
the  company's  business  nor  within  the  con- 
ductor's authority,  yet  the  company  is  clearly 
liable  because  the  conductor  is  acting  at  the  time 
in  the  sphere  of  activity  for  which  he  is  em- 
ployed; his  acts  are  incident  to  and  rendered 
possible  by  the  opportunities  and  powers  con- 
ferred upon  him  by  the  company.  The  com- 
pany selected  the  conductor,  put  him  in  charge 
of  the  train  and  must  stand  the  consequences. 
It  gets  the  benefits  of  the  service  and  must  bear 
the  losses  incident  to  or  arising  from  it. 


82    LEGAL  DOCTRINE  AND  SOCIAL  PROGRESS 

The  servant  himself  is  also  liable,  of  course, 
directly  to  the  injured  party.  And  the  master 
who  has  to  pay  for  the  fault  of  the  servant  has 
an  action  over  against  him  for  reimbursement. 

The  fellow  servant  doctrine.  The  old  rule  of 
the  common  law  that  an  employe  could  not  re- 
cover from  the  master  for  damages  resulting 
from  the  negligence  of  a  fellow  servant,  was 
based  on  the  idea  that  the  negligence  of  fellow 
servants  was  one  of  the  ordinary  risks  of  em- 
ployment which  the  employe  took  upon  himself 
when  he  engaged  in  the  business.  But  the  rule 
is  now  quite  generally  modified  by  statute,  and 
it  is  quite  clear  that  the  employer  stands  in  far 
better  position  than  the  worker  to  prevent  injury 
either  by  defective  machinery  or  negligence  of 
the  company's  employes.  The  master  or  his 
agents  select  the  employes,  the  business  is  car- 
ried on  under  his  direction  and  control  and  for 
his  benefit,  and  he  must  bear  the  resulting  losses 
among  which  are  injuries  to  employes  who  are 
themselves  innocent  of  fault. 

Legal  and  moral  responsibility  not  cotermi- 
nous. Legal  liability  is  generally  accompanied 
by  blameworthiness  but  this  is  not  always  true. 
Legal  responsibility  and  moral  responsibility 
coexist  throughout  a  large  part  of  their  terri- 
tory, but  are  not  coterminous  at  either  end. 
One  may  be  exceedingly  blameworthy  without 


EIGHTS  AND  WRONGS  DETERMINE  THE  LAW        83 

incurring  legal  liability,  as  where  a  man  out  of 
spite  and  malice  builds  a  high  wall  on  the  edge 
of  his  land  on  purpose  to  shut  off  his  neighbor's 
light,  air  and  view.  And  on  the  other  hand 
legal  liability  may  exist  where  there  is  no  blame. 
A  man  may  be  liable  on  his  contract  even 
though  it  be  impossible  for  him  to  fulfill  it,  as 
if  his  property  is  swept  away  by  fire  or  flood, 
cyclone  or  panic,  so  that  he  cannot  make  pay- 
ment at  the  time  agreed,  he  is  nevertheless 
liable  on  his  note.  Even  if  he  becomes  himself 
a  physical  and  mental  wreck  so  that  payment 
is  permanently  impossible,  he  is  still  liable. 

Where  the  impossibility  attaches  to  an  act  of 
a  specific  nature,  it  may  excuse  performance; 
as  if  an  opera  singer  falls  ill,  or  an  artist  who 
has  agreed  to  paint  a  picture  loses  his  arms,  or 
a  horse  that  is  to  be  delivered  on  a  given  day 
dies  the  day  before  that  time  without  fault  of 
the  vendor,  performance  is  excused.  But  the 
fact  that  impossibility  is  not  always  an  excuse 
shows  how  far  beyond  the  line  of  blame  legal 
responsibility  may  be  carried.  A  master,  as 
we  have  seen  is  legally  responsible  for  torts 
committed  by  his  servant  while  acting  within 
the  sphere  of  his  employment,  although  he  may 
have  selected  the  servant  with  the  utmost  care, 
and  expressly  prohibited  the  acts  complained  of; 
and  too  when  no  blame  either  of  intent  or  negli- 


84        LEGAL  DOCTRINE  AND  SOCIAL  PROGRESS 

gence  is  imputable  to  the  servant.  It  is  enough 
that  the  business  is  carried  on  under  the 
master's  control  and  for  his  benefit  to  make 
him  responsible  for  the  injuries  resulting  from 
it  to  innocent  third  persons. 

Act  may  be  morally  right  yet  criminal.  Even 
criminal  liability  may  exist  where  no  moral 
blame  attaches.  The  owner  of  a  building  may 
be  liable  for  a  nuisance  established  on  his 
premises  such  as  a  liquor  or  gambling  den  or* 
brothel,  although  he  selected  his  tenant  with 
due  care,  expressly  stipulated  against  any  such 
use  of  the  property  and  personally  inspected 
the  premises  every  few  months.  So  it  is  no  ex- 
cuse of  bigamy  that  a  woman  honestly  believed 
her  husband  to  be  dead.  So  no  moral  blame 
attaches  necessarily  to  the  running  of  an  auto- 
mobile more  than  twenty  or  thirty  miles  an 
hour;  or  to  the  wearing  of  clothes  appropriate 
to  the  other  sex;  but  these  are  both  sufficient 
causes  for  arrest  and  criminal  prosecution. 

One  of  the  most  interesting  points  in  the  com- 
parative anatomy  of  legal  and  moral  responsibil- 
ity is  the  fact  that  a  person  may  be  legally  liable 
not  only  without  blame  but  in  consequence  of 
conduct  of  the  highest  beneficence.  For  ex- 
ample, one  who  quietly  puts  a  hopeless  sufferer 
from  incurable  disease  out  of  his  misery  may  be 
doing  an  act  of  the  greatest  kindness  but  he 


BIGHTS   AND   WRONGS   DETERMINE   THE   LAW        85 

would  nevertheless  be  criminally  liable  on  the 
charge  of  murder.  The  law  cannot  trust  the 
question  of  life  and  death  to  individual  discre- 
tion. Such  a  rule  would  open  the  door  to  fraud 
and  greatly  diminish  the  security  of  human  life. 
It  is  quite  possible  that  in  the  future  such  dis- 
cretion may  be  given  to  a  competent  commission 
of  experts  but  it  can  never  be  intrusted  to 
individual  judgment. 

The  basis  of  criminal  liability.  Criminal 
liability  at  common  law  requires  a  free  volun- 
tary act  or  omission  on  the  part  of  one  pos- 
sessing intellectual  capacity  sufficient  to  under- 
stand the  nature  and  consequences  of  the  act, 
and  having  knowledge  of  circumstances  from 
which  a  man  of  ordinary  prudence  and  intelli- 
gence would  foresee  that  the  act  or  omission 
might  be  dangerous  or  injurious.  But  under 
statutory  provisions  criminal  liability  may  be 
broadened  so  that  a  man  must  find  out  at  his 
peril  those  facts  which  may  bring  his  conduct 
into  conflict  with  the  law.  The  full  statement 
of  the  ground  of  criminal  liability,  therefore, 
must  be  as  follows: — a  free  voluntary  act  or 
omission  on  the  part  of  one  who  has  sufficient 
mental  capacity  to  understand  the  nature  and 
consequences  of  the  act  and  who  knows  or 
ought  to  have  known  of  circumstances  from 
which  a  man  of  ordinary  prudence  and  intelli- 


86    LEGAL  DOCTKINE  AND  SOCIAL  PKOGEESS 

gence  would  foresee  the  act  or  omission  might 
be  injurious. 

A  free  act.  There  must  be  a  free  voluntary 
act.  Inability  to  refrain  from  the  act  is  a  de- 
fense. Punishment  can  have  no  preventive  ef- 
fect on  any  other  basis  than  that  the  fear  of 
it  acts  upon  the  intelligence  being  capable  of 
refraining  from  the  prohibited  conduct.  If  the 
defendant  acted  under  compulsion,  as  of  an 
armed  force  or  because  of  necessity  to  escape 
irreparable  injury,  there  is  no  criminal  liabil- 
ity, also  if  he  acted  under  irresistible  impulse 
as  in  case  of  delirium  tremens.  The  irresist- 
ible impulse  or  overwhelming  passion  of  a  sane 
man  is  no  excuse.  But  irresistible  impulse  re- 
sulting from  disease  which  destroys  the  will 
destroys  criminal  liability.  Temporary  insan- 
ity induced  by  intoxicants  or  drunkenness  vol- 
untarily incurred  is  held  to  be  no  excuse,  but 
the  real  insanity  of  delirium  tremens  which 
overturns  the  will  completely  is  a  defense.  If 
the  act  is  done  in  sleep  or  hypnotism  or  under 
the  influence  of  opium  there  is  no  criminal  lia- 
bility unless  the  condition  referred  to  was  in- 
duced with  a  view  to  the  commission  of  the 
crime.  Wherever  an  "act  of  God"  intervenes 
or  accident  is  the  real  cause  of  the  injury  no 
criminal  liability  exists. 

A  sound  mind.    There  must  be  mental  ca- 


EIGHTS   AND   WEONGS   DETEEMINE   THE   LAW        87 

pacity  sufficient  to  understand  the  nature  and 
consequence  of  the  act.  An  infant  under  seven 
years  of  age  is  presumed  incapable  of  criminal 
intent.  And  if  there  is  a  mental  delusion  as 
to  the  act,  insanity,  or  mental  incapacity  for 
understanding  the  nature  and  consequences  of 
the  act  there  will  be  no  criminal  liability. 
Moral  delusion  as  to  the  nature  of  the  act,  how- 
ever, is  no  excuse.  An  anarchist,  for  instance, 
may  fully  believe  he  is  performing  a  virtuous 
action  when  he  throws  a  bomb  at  a  king  or 
industrial  aristocrat,  but  if  he  understands  in- 
tellectually the  nature  and  consequences  of  his 
act,  viz.,  that  it  may  cause  explosion  and  death, 
it  is  a  crime  no  matter  what  his  individual  opin- 
ion as  to  morality  of  his  act  may  be. 

Foresight  not  essential  to  liability.  It  is  not 
necessary  even  at  common  law  that  the  indi- 
vidual should  foresee  the  danger  of  injury  re- 
sulting from  his  conduct.  It  is  enough  if  the 
circumstances  known  to  him  at  the  time  would 
have  led  a  man  of  ordinary  prudence  and  intel- 
ligence to  foresee  the  danger  from  the  act. 
The  test  of  foresight  is  the  average  man,  and 
the  defective  prevision  of  the  individual  actor 
is  no  defense  unless  his  mental  incapacity  is 
so  great  as  to  put  him  in  one  of  the  excepted 
classes,  infancy,  insanity,  etc.  For  example,  a 
workman  removing  the  walls  of  a  building  that 


88         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

is  being  torn  down  may  not  actually  foresee 
danger  to  passersby  from  the  methods  he 
adopts,  but  if  the  man  of  ordinary  prudence 
and  intelligence  would  have  foreseen  such  dan- 
ger he  will  be  criminally  liable  and  may  be  in- 
dicted for  manslaughter,  if  a  person  passing 
below  is  killed  by  the  falling  of  the  wall  in  con- 
sequence of  his  imperfect  methods. 

Omissions  are  indictable.  Omissions  may  be 
indictable  as  well  as  positive  acts,  for  example, 
the  omission  of  a  person  cognizant  of  crime  to 
notify  the  government  that  a  felony  has  been 
committed.  So  also  is  the  neglect  of  a  switch 
tender  to  turn  the  switch  at  the  proper  time, 
or  of  a  train  dispatcher  to  send  a  telegram,  or 
of  a  physician  to  attend  a  patient,  or  of  a  pro- 
prietor, contractor,  or  workman  to  cover  a  dan- 
gerous ditch  or  well  or  properly  safeguard  any 
dangerous  agency. 

Basis  of  liability  for  tort.  Liability  for  tort 
generally  involves  as  matter  of  fact  the  same 
three  elements  as  criminal  liability.  But  the 
essential  elements  are  simply  (1)  an  act  on  the 
part  of  the  defendant  which  forms  a  link  in 
the  chain  of  causes  leading  up  to  and  produc- 
ing the  injury;  (2)  notice  actual  or  construct- 
ive of  circumstances  from  which  a  man  of 
average  prudence  and  intelligence  would  fore- 
see that  the  act  might  be  injurious. 


BIGHTS   AND   WRONGS   DETERMINE   THE   LAW        89 

No  free  voluntary  act  is  necessary.  A  man 
may  be  liable  for  a  tort  committed  under  com- 
pulsion or  necessity.  If  armed  men  compel  A 
to  take  B's  horse  A  is  not  criminally  liable  but 
he  is  liable  in  tort.  He  takes  B's  horse  to  save 
himself  but  must  pay  for  the  conversion. 

Intellectual  capacity  to  understand  the  na- 
ture of  the  act  is  not  essential.  A  man  may  be 
liable  as  we  have  seen  for  his  insane  tort,  as 
between  two  innocent  parties  he  who  causes 
the  loss  must  bear  it. 

There  must  be  knowledge  of  circumstances 
from  which  the   average  man  would  foresee 
danger.    A  man  is  bound  at  his  peril  to  keep 
his  cattle  in,  for  it  is  well  known  that  if  his 
cattle  stray  into  his  neighbor's  fields  they  are 
likely  to  injure  crops  and  garden ;  but  he  is  not 
bound  to  confine  his  dog  unless  he  has  actual 
notice  of  a  propensity  to  do  harm  on  the  part 
of  the  particular  animal,  for  dogs  are  not  usu- 
ally dangerous  or  harmful.     If  A  exercises  do- 
minion over  the  property  of  another  thinking  it 
is  his  own,  he  is  nevertheless  liable  in  tort  al- 
though he  may  not  be  blameworthy  and  has  no 
actual  notice  of  the  facts  that  make  his  con- 
duct wrongful.    He  is  bound  at  his  peril  to  be 
sure  the  property  is  his  own.     So  if  an  auc- 
tioneer sells  goods  that  have  been  sent  to  his 
rooms  by  mistake  he  may  have  to  pay  for  the 


90    LEGAL  DOCTEINE  AND  SOCIAL  PKOGRESS 

goods  although  he  has  no  way  to  reimburse 
himself.  If  a  clerk  in  a  book  store  sells  a 
libelous  book  the  owner  of  the  store  is  liable, 
under  the  broad  rule  already  discussed  that 
an  employer  is  responsible  for  the  torts  of  his 
employe  committed  while  acting  in  the  master's 
business.  In  such  cases  there  is  no  moral 
blame  or  fault  of  any  kind  nor  even  knowledge 
of  the  specific  circumstance  that  renders  the 
act  injurious  but  only  a  general  knowledge  that 
injury  may  result. 

The  key  to  legal  liability.  It  is  a  rule  of 
public  policy  that  as  between  two  innocent 
parties  the  one  within  whose  sphere  of  activity 
or  business  the  loss  occurs  and  who  is  in  the 
best  position  to  prevent  the  loss,  shall  be  held 
responsible  for  it.  In  some  cases  the  law  will 
even  put  a  loss  on  one  who  has  not  even  so 
close  a  relationship  as  that  of  employer  to  the 
wrong-doer.  For  example,  A's  vessel  may  be 
held  to  pay  for  a  negligent  collision  although 
the  ship  was  in  the  hands  of  an  independent 
lessee.  Here  we  have  only  the  general  knowl- 
edge on  the  part  of  A  that  the  ship  he  owns 
and  leases  may  cause  injury  by  collision,  etc. 
If  B  were  to  hire  A's  carriage  or  automobile 
and  negligently  collide  with  another  vehicle, 
A's  carriage  could  not  be  held  for  the  damages. 
But  in  case  of  a  ship  in  foreign  waters  it  may 


EIGHTS   AND   WRONGS   DETERMINE   THE   LAW        91 

be  difficult  for  the  injured  party  to  enforce  his 
claim  against  anything  but  the  ship.  So  the 
vessel  is  held  and  the  foreign  owner  is  left  to 
recover  from  the  lessee  as  best  he  can.  The 
owner  could  not  be  held  personally  liable  in 
such  a  case  but  his  property  is  held  because 
that  is  the  best  and  surest  method  of  securing 
fair  redress,  such  liability  being  one  of  the 
risks  the  owner  knows  he  must  take  when  he 
leases  the  ship.  At  bottom  legal  liability  is  a 
question  of  what  is  reasonably  expedient  under 
all  circumstances  of  the  case, — public  policy  is 
the  root  of  the  tree. 

The  formal  liabilities  have  changed.  Both 
criminal  liability  and  liability  for  tort  had  their 
origin  in  vengeance — the  impulse  to  destroy 
what  hurts  us  and  so  prevent  future  harm.1 
In  early  times  the  dog,  or  horse,  or  slave  that 
caused  an  injury  must  be  delivered  up  to  the 
injured  party  to  be  put  to  death.  In  "Ex- 
odus" the  ox  was  to  be  stoned.  In  Athens  the 
ox  was  to  be  banished.  The  wagon  that  caused 
damage  was  to  be  burned  at  the  stake.  In 
later  times  the  owner  of  the  ox,  or  cart,  or 
slave  was  allowed  to  make  a  money  payment 
instead  of  delivering  up  the  guilty  person,  ani- 
mal, or  thing.     Here  we  have  the  ribs  of  the 

i  See  "Ancient  Laiv,"  by  Sib  Henry  Maine,  and  "The  Com- 
mon Law,"  by  Oliveb  Wendell  Holmes. 


92    LEGAL  DOCTRINE  AND  SOCIAL  PROGRESS 

common  law — punishment  for  wrong-doing  and 
payment  of  damages  for  injury. 

The  liabilities  of  the  law  to-day  are  on  a 
much  higher  plane  than  they  were  some  hun- 
dred years  ago.  Our  criminal  law  aims  di- 
rectly and  consciously  at  prevention,  adjusts 
the  punishment  to  the  degree  of  guilt  and 
strives  to  reform  the  criminal  with  ever-in- 
creasing care  and  wisdom;  our  civil  law  with 
a  good  degree  of  consistency  aims  to  throw  the 
loss  arising  in  any  transaction  upon  the  one 
who  has  in  the  course  of  actions  producing  the 
loss,  manifested  in  greater  degree  those  quali- 
ties which  should  be  eliminated. 

And  may  change  again.  It  may  be  that  in 
the  future  the  philosophy  of  legal  liability  may 
be  greatly  simplified  and  clarified  by  distin- 
guishing between  liability  as  a  wrong-doer,  and 
liability  as  insurer  on  a  contract  implied  by 
law  upon  the  circumstances  of  the  case.  A 
master,  for  instance,  who  is  held  for  damage 
done  by  his  servant  without  fault  or  negligence 
on  the  part  of  the  employer  himself,  is  not 
really  held  in  tort  but  in  contract.  He  is  not 
a  wrong-doer,  is  not  guilty  of  tort  himself,  but 
is  held  for  the  tort  of  another  on  a  contract 
implied  by  the  law  that  in  consideration  of 
carrying  on  his  business  in  the  community  and 
engaging  employes  to  do  the  work,  he  will  guar- 


BIGHTS   AND   WRONGS   DETERMINE   THE   LAW        93 

antee  the  public  against  loss  or  injury  result- 
ing from  such  employment  and  such  business 
carried  on  for  his  benefit.  That  appears  to  be 
true  ground  of  liability  in  such  cases  and  it 
would  be  well  if  the  formal  liabilities  of  the 
law  could  be  put  in  each  case  upon  their  true 
foundations  in  reason  and  fact,  instead  of  be- 
ing left  to  rest  upon  fiction  or  wrongly  classed 
with  liabilities  of  a  wholly  different  nature  and 
foundation. 

Only  proximate  consequences  considered  in 
recovering  damages.  In  estimating  damages 
the  law  looks  only  to  the  proximate  conse- 
quences, that  is  to  the  direct  and  immediate 
consequences  of  the  act,  omission  or  event  that 
formed  the  basis  of  suit,  and  does  not  take  into 
account  the  indirect,  remote,  or  secondary  con- 
sequences except  where  liability  for  such  con- 
sequences is  clearly  contemplated  and  provided 
for  by  contract.  For  example,  if  B  destroys 
my  books,  and  the  loss  of  my  library  makes  me 
ill  so  that  I  lose  time  and  money,  have  to  pay 
doctors'  bills  and  cancel  a  valuable  engage- 
ment to  deliver  a  series  of  lectures,  the  law  will 
give  me  only  the  fair  value  of  the  books  de- 
stroyed: I  cannot  recover  for  the  secondary 
losses  incident  to  the  sickness  brought  on  by 
the  destruction  of  my  literary  possessions.  So 
if  B  blows  up  my  store  I  can  only  recover  the 


94    LEGAL  DOCTRINE  AND  SOCIAL  PROGRESS 

value  of  the  building  and  its  contents,  or  the 
difference  in  their  value  before  and  after  the 
wrongful  act,  in  case  they  are  not  wholly  de- 
stroyed. I  cannot  recover  for  the  loss  of  cus- 
tom nor  the  wages  paid  my  permanent  em- 
ployes during  the  time  the  store  is  being 
rebuilt  and  newly  stocked.  A  man  is  not  held 
to  contemplate  the  indirect  or  secondary  con- 
sequences of  his  acts  but  only  the  natural,  di- 
rect, and  immediate  consequences.  It  is  the 
rule  of  the  average  man  once  more.  The  law 
requires  only  common  prudence  and  ordinary 
foresight.  In  contract  cases  the  same  rule 
holds.  I  have  a  fire  insurance  on  my  store; 
if  loss  occurs  within  the  terms  of  the  policy  I 
can  recover  for  the  damage  to  the  property  by 
fire  and  smoke  and  also  for  damage  caused 
by  water  used  to  extinguish  the  fire,  for  these 
are  the  natural  and  proximate  consequences  of 
the  fire,  but  I  cannot  recover  for  the  salaries 
of  employes  engaged  by  the  year  or  for  the  loss 
of  trade  during  the  period  of  reconstruction, 
unless  the  policy  expressly  covers  such  second- 
ary losses.  The  law  will  not  presume  that  in- 
direct, remote  and  secondary  consequences 
were  within  the  contemplation  of  the  parties 
unless  they  have  made  this  clearly  manifest. 


VI 


THE  FUNCTIONS  AND  OBJECTS  OP  THE  LAW  CONTEM- 
PLATE A  MUCH  LARGER  SCOPE  OP  USEFULNESS 
THAN  GOVERNMENTS  AS  YET  PERFORM 

In  its  comprehensive  business  of  repressing 
evil  and  developing  good,  the  law  has  various 
special  functions  and  specific  objects  which 
may  be  stated  as  follows : 


FUNCTIONS  OF 
THE  LAW 

Restraint — Pro- 
hibition and 
compulsion. 

Protection. 

Relief. 

Regulation. 

Development. 

Service. 


SPECIFIC  OBJECTS 

To  establish  justice,  order, 
economy  and  facility. 

To  insure  domestic  tran- 
quillity. 

To  provide  for  the  common 
defense. 

To  secure  the  blessings  of 
liberty. 

To  promote  the  general  wel- 
fare. 


Incident  to  all  these  and  in  a  sense  at  basis 
of  them  all,  are  laws  providing  for  taxation, 
by  means  of  which  the  necessary  funds  are 
raised  to  establish  and  maintain  armies  and 

95 


96    LEGAL  DOCTRINE  AND  SOCIAL  PROGRESS 

navies,  police,  courts,  prisons,  schools,  public 
parks,  legislatures  and  all  the  machinery  of  the 
law. 

Service.  Laws  providing  for  schools,  libra- 
ries, parks,  fire  service,  public  water  supply, 
etc.,  are  laws  of  service. 

Development.  Laws  providing  public  schol- 
arships and  prizes  for  good  work  in  school  or 
any  special  inducements  for  the  cultivation  of 
ability,  premiums  for  the  best  varieties  of 
stock  or  agricultural  or  manufactured  products, 
appropriations  for  expositions  to  stimulate  in- 
dustry, tariffs  to  protect  and  develop  produc- 
tion, reasonable  rights  and  privileges  granted 
to  private  parties  who  will  undertake  to  open 
mines  and  build  railways,  farms  and  factories 
— all  these  are  laws  of  development  aimed  at 
the  positive  production  of  good,  not  by  the  di- 
rect performance  of  the  service  through  public 
agencies,  but  by  the  encouragement  of  effective 
private  activities  in  the  desired  directions. 

Regulation.  Laws  providing  forms  for  con- 
tracts, wills,  corporate  acts,  procedure  in  court, 
requiring  vehicles  to  go  to  the  right  in  passing, 
prescribing  the  conditions  of  entering  on  the 
practice  of  medicine,  law,  pilotage,  etc.,  etc.,  are 
regulative  measures  intended  to  secure  order, 
economy,  safety,  and  the  facilitation  of  busi- 
ness. 


GROWTH   OF   GOVERNMENTAL   FUNCTIONS        97 

Methods  of  relief.  Belief  is  given  by  two 
broad  methods  that  we  have  already  seen: 
(1)  Suits  for  damages  at  law  whereby  losses 
caused  by  conduct  deemed  detrimental  to  so- 
ciety are  transferred  from  the  innocent  to  those 
in  fault.  (2)  Various  more  specific  remedies 
are  afforded  by  Equity  which  issues  the  writ 
of  injunction  and  mandamus,  which  establishes 
and  enforces  equitable  titles,  liens  and  priori- 
ties, which  decree  the  reformation,  rescission 
or  specific  performance  of  contracts,  reconvey- 
ance and  re-execution,  cancellation  of  void 
documents,  redemption  of  mortgages,  which 
orders  contribution,  subrogation,  exoneration, 
discovery,  election,  marshaling,  set-off,  etc., 
and  relieves  against  fraud,  mistake,  penalty  of 
forfeiture,  statute  of  fraud,  or  any  of  the 
merely  formal  rules  of  law  where  their  action 
would  conflict  with  justice,  etc.,  etc.  For  in- 
jury or  loss  that  is  caused  by  conduct  not 
deemed  detrimental  to  society  the  law  gives  no 
relief.  For  example,  A  may  open  a  store  or 
build  a  factory  to  compete  with  B  and  may 
greatly  injure  B  or  ruin  him  perhaps,  but  the 
law  gives  him  no  redress,  for  industrial  com- 
petition is  regarded  as  a  benefit  to  the  commu- 
nity. Moreover,  there  are  many  losses  resulting 
from  conduct  that  is  clearly  detrimental  for 
which  nevertheless  the  law  gives  no  relief  be- 


98    LEGAL  DOCTRINE  AND  SOCIAL  PROGRESS 

cause  as  we  have  seen  above  it  does  not  at- 
tempt to  enforce  the  whole  of  the  moral  law, 
but  draws  broad  lines  (based  on  considerations 
of  cost,  definiteness  of  proof,  etc.)  within  which 
it  will  confine  its  action.  A  man  may  spend  a 
large  part  of  his  wages  for  liquor,  tobacco,  bil- 
liards, or  fancy  dress,  to  the  serious  damage 
of  his  wife  and  children,  or  he  may  spend  his 
days  in  idleness,  or  speculation,  and  the  law 
will  not  intervene  so  long  as  he  provides  the 
necessaries  of  life  for  his  family,  and  even  if 
he  fails  in  this,  no  remedy  at  law  is  available 
in  many  cases,  as,  for  example,  where  through 
idleness,  bad  character  or  incompetence  he  has 
no  earnings  with  which  to  support  his  family. 

Restraint.  Eestraint  is  the  primary  func- 
tion of  the  law  in  point  of  time,  that  is,  it  was 
the  first  to  be  developed  in  primeval  times. 
The  earliest  codes  are  composed  of  prohibi- 
tions and  compulsions — 

Thou  shalt  not  murder, 

Thou  shalt  not  steal, 

Thou  shalt  not  commit  adultery, 

Thou  shalt  not  bear  false  witness, 

Thou  shalt  observe  the  Sabbath  day  to  keep 
it  holy,  etc. 

To  restrain  men  by  prohibiting  certain  ac- 
tions is  still  an  important  part  of  the  business 
of  the  law.     The  whole  of  the  criminal  law  is 


GKOWTH   OF   GOVEENMENTAL   FUNCTIONS        99 

concerned  with  prohibitions  and  the  penalties 
for  their  violation.  And  the  redress  offered 
by  the  civil  suits  and  the  liabilities  on  which 
they  are  based  have  also  a  restraining  tendency, 
influencing  men  to  refrain  from  the  violation 
of  public  or  private  right. 

The  emphasis  changes.  The  relative  pro- 
portion of  these  special  functions  in  the  total 
make-up  of  the  law,  varies  greatly  in  different 
times  and  countries.  Among  some  peoples  in 
early  days  the  criminal  law  was  practically 
100%  of  the  whole,  but  as  civilization  advanced, 
laws  of  regulation,  encouragement  and  service 
were  developed  in  abundance.  The  higher  the 
civilization,  the  greater  the  relative  develop- 
ment of  service  and  the  smaller  the  proportion 
of  the  law  that  is  occupied  by  the  criminal  code. 
In  a  symmetrical  statement  of  our  law  to-day, 
the  criminal  law  would  constitute  considerably 
less  than  1%  of  the  total. 

At  the  limit  of  progress  the  law  of  restraint 
would  vanish.  "With  any  given  race  or  people, 
the  aggressive  qualities  that  give  rise  to  the  need 
for  criminal  law,  are  much  more  prevalent  in 
the  days  of  barbarism  than  in  civilized  commu- 
nities of  the  same  race  or  people. 

Restraint  becomes  gradually  less  important. 
To  the  savage,  surrounded  by  enemies  and 
spending  his  days  in  defense  and  pursuit,  an 


100         LEGAL   DOCTRINE   AND   SOCIAL  PROGRESS 

aggressive  nature  may  be  of  the  highest  utility. 
But  as  social  organization  develops  security 
and  the  arts  of  peace,  the  field  for  aggression 
diminishes,  and  the  demand  for  cooperative 
qualities  increases.  The  man  who  retains  so 
much  of  the  savage  in  his  blood  as  to  break  out 
in  quarrels,  affrays  and  serious  depredations, 
is  a  menace  to  the  peace  and  prosperity  of  so- 
ciety and  is  put  under  the  ban  of  the  criminal 
law;  this  branch  of  the  law  is  established  to 
punish  and  suppress  the  more  serious  aggres- 
sions due  to  the  survival  in  social  man  of  an 
overplus  of  primitive  individualism  so  pro- 
nounced as  to  be  explosive. 

The  tendency  to  an  equilibrium  is  a  universal 
law  of  nature.  Antagonistic  forces  tend  to 
destroy  each  other  and  leave  only  those  that 
can  act  together  in  harmony.  The  laws  of  na- 
ture and  the  laws  of  man,  the  survival  of  the 
fittest,  and  the  pressure  of  social  forces  acting 
under  the  direction  of  intelligence,  are  gradu- 
ally eliminating  the  primitive  man,  squeezing 
out  the  savage  blood  drop  by  drop,  and  evolv- 
ing a  human  nature  whose  impulses  do  not  lead 
to  aggression  but  to  activities  that  are  not  at 
variance  with  the  social  welfare.  Law,  indus- 
try, education  and  social  life  are  developing 
a  cooperative  type  of  character,  the  cooperative 
man,  the  mutualistic  man.    There  are  cases  here 


GROWTH   OF   GOVERNMENTAL   FUNCTIONS        101 

and  there  of  reversion  to  primitive  types,  but 
they  are  most  wisely  treated  as  cases  of  de- 
formity or  disease  to  be  corrected  or  cured  if 
possible,  if  not,  to  be  so  dealt  with  as  to  pro- 
tect society  from  present  harm  or  future  con- 
tamination. Society  will  reach  the  limit  of  the 
usefulness  of  the  criminal  law  as  civilization 
advances,  and  as  men  become  more  moral  and 
intelligent.  Criminal  law  is  like  a  scaffolding 
around  a  giant  building.  It  is  necessary  dur- 
ing the  process  of  construction,  but  when  the 
building  is  complete  it  is  no  longer  needful. 
So  when  the  building  of  the  new  cooperative  na- 
ture is  complete  the  scaffolding  of  the  criminal 
law  can  be  removed. 

The  law  changes  in  its  very  fundamentals. 
The  change  in  the  relative  proportion  of  differ- 
ent functions  is  not  the  only  transformation 
that  is  in  progress  in  our  jurisprudence.  The 
whole  law  is  in  flux  from  age  to  age,  and  decade 
to  decade.  In  one  age  we  find  despotic  govern- 
ment, war  and  slavery,  playing  a  most  useful 
and  perhaps  essential  part  in  the  development 
of  civilization — despotic  government  compel- 
ling men  to  obedient  and  concerted  action ;  war 
and  absolutism  compressing  men  into  nations 
and  holding  them  together  until  the  repulsion 
of  savageism  might  be  replaced  by  the  cohe- 
sions necessary  to  civilized  life;  slavery  over- 


102         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

coming  the  indolence,  inertia  and  lack  of  ap- 
plication inherent  in  the  primitive  nature,  and 
developing  in  mankind  the  power  of  sustained 
labor.  But  when  that  work  is  done  and  men 
are  able  to  live  and  work  together  in  well 
developed  social  and  industrial  organizations, 
the  strenuous  compressive  legal  forces  will  be- 
come such  colossal  evils,  that  a  movement  for 
their  banishment  will  arise,  and  the  details  of 
the  law  will  undergo  a  corresponding  change. 

Industrial  changes  of  to-day.  Just  now  we 
are  in  transition  from  industrial  competition  to 
cooperation.  Industrial  struggle  and  the  in- 
dustrial aristocracy  developed  by  it  have  done 
much  for  civilization.  They  have  developed 
individual  enterprise  and  taught  men  combina- 
tion in  industry  and  coordinated  effort  in 
great  cooperative  groups.  For  many  years 
economists  believed  the  competitive  system  to 
be  the  permanent  status  of  industry,  just  as 
Aristotle  regarded  slavery  as  a  permanent  in- 
stitution based  on  the  principles  of  divine  right 
and  justice.  But  our  science  of  political  econ- 
omy in  recent  years  has  been  undergoing  a 
change  almost  as  remarkable  as  that  which  took 
place  in  astronomy  in  the  Copernican  era. 
Economists  and  publicists  are  pointing  out  the 
wastes  of  competition.  They  declare  that 
from  one-half  to  three-fourths  of  our  stores 


GROWTH   OF   GOVERNMENTAL   FUNCTIONS         103 

and  factories  are  useless  duplications;  that 
large  bodies  of  men  are  devoting  energies  to 
occupations  which  are  really  parasitic  and  det- 
rimental to  society;  that  competition  is  cruel, 
wasteful,  demoralizing,  and  in  every  way  in- 
imical to  the  highest  interests  of  society;  that 
it  ruins  the  lives  of  millions  with  struggle  and 
want  from  the  cradle  to  the  grave,  and  mars  the 
lives  of  others  with  pride  and  luxury;  that  it 
builds  the  slums  of  the  cities  and  the  palaces  of 
the  idle  rich;  that  it  wastes  three-fifths  of  the 
industrial  forces  of  the  world,  with  its  plan- 
less production,  panics,  strikes,  inelastic,  de- 
grading wage  system  that  treats  the  laborer  as 
commodity  and  denies  him  the  energy  born  of 
an  interest  in  his  work  and  its  profits,  its 
insufficient  care  of  education,  and  the  innumer- 
able conflicts  and  useless  duplications  it  oc- 
casions; that  it  has  given  us  a  distorted 
civilization  in  which  half  the  people  own  prac- 
tically nothing,  one-eighth  of  the  people  own 
seven-eighths  of  the  wealth  and  1%  of  the 
people  own  more  than  50%  of  the  total  wealth 
of  the  country;  that  1%  owns  more  than  the 
other  99%,  and  could  buy  out  the  ninety-nine 
and  have  something  left;  that  it  has  given  us 
a  standard  of  value  and  a  division  of  labor  that 
sacrifices  manhood  to  merchandise;  that  it 
gives  activity  and  growth  to  all  that  is  hard, 


104         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

combative,  unsympathetic,  unscrupulous  and 
cunning  in  man,  and  hinders  the  development  of 
sympathy  and  helpfulness,  truthfulness  and 
public  spirit;  that  it  rewards  injurious  activi- 
ties and  gives  some  of  the  highest  prizes  to 
cunning  dishonesty  and  injustice;  that  it  is 
destructive  of  liberty  and  individuality;  that  it 
makes  automatons  of  the  millions  and  imperi- 
ous despots  of  their  employers;  puts  wages 
down  and  prices  up  by  its  wastes  and  its  de- 
basement of  the  worker;  prevents  the  survival 
of  the  best ;  and  has  given  us  a  distribution  of 
power  that  threatens  the  life  of  the  Eepublic. 
Cooperation  superseding  competition. 
There  are  many  indications  that  competition  is 
giving  way  to  cooperation — that  planless  pro- 
duction with  partial  organization  of  industry 
for  the  benefit  of  a  few,  will  give  place  to  com- 
plete and  scientific  organization  of  industry 
for  the  benefit  of  all.  The  growth  of  public 
ownership  and  voluntary  cooperation,  the  evo- 
lution of  trusts  and  combines  and  trade  unions, 
the  development  of  socialistic  thought,  and  the 
maturer  direction  of  this  thought  toward  a  rea- 
sonable development  of  public  ownership  in  the 
field  of  monopoly  united  with  voluntary  coopera- 
tion in  commerce,  manufactures  and  agriculture, 
where  the  way  to  cooperation  is  open  without  re- 
sort to  the  legislative  form — all  these  powerful 


GROWTH   OF   GOVERNMENTAL   FUNCTIONS        105 

movements  are  working  in  the  same  direction — 
the  replacement  of  competition  by  cooperation. 
Industrial  aristocracy  is  to  be  replaced  by  in- 
dustrial democracy,  just  as  political  aristocracy 
was  replaced  by  political  democracy,  and  for 
similar  reasons,  viz. :  to  secure  liberty,  equality, 
protection  from  injustice,  equalization  of  op- 
portunity, diffusion  of  power  and  benefit.  In 
fact  there  is  reason  to  believe  that  political 
democracy  itself  can  only  be  completely  real- 
ized through  the  establishment  of  industrial 
democracy ;  so  that  the  vital  and  powerful  trend 
of  modern  times  toward  political  democracy  is 
another  giant  force  working  for  the  extinction 
of  industrial  aristocracy  and  the  competitive 
system  on  which  it  is  based. 

The  law  responds  to  this  movement.  How 
vigorous  is  the  trend  toward  cooperation  not 
only  in  the  world  of  thought  but  in  the  world 
of  practical  affairs,  may  be  seen  by  a  few  plain 
facts  of  recent  history. 

Public  ownership  increasing.  The  rapid 
growth  of  the  movement  for  the  public  owner- 
ship of  public  utilities.  Nearly  all  the  civilized 
nations  of  the  world  own  and  operate  their  tele- 
graph and  telephone  system  and  the  great  ma- 
jority of  them  own  and  operate  their  railways 
also.  From  1800  to  1900  public  water  works  in 
the  United  States  developed  in  round  numbers 


106         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

from  6%  to  60%  of  the  whole  number.1  Of  the 
fifty  largest  cities  in  the  United  States,  twenty- 
one  originally  built  and  now  own  their  water 
works,  twenty  have  changed  from  private  to 
public  ownership,  and  only  nine  are  now  de- 
pendent on  private  companies  for  their  water 
supply.  Some  of  the  remaining  nine  appear  to 
be  on  the  point  of  changing  to  municipal  owner- 
ship, and  practically  all  of  them  are  in  process 
of  agitation  for  such  a  change. 

The  public  gas  plants  of  the  United  States 
numbered  fifteen  in  1900  and  twenty-five  in 
1906,  a  growth  of  67%,  against  an  increase  of 
48%  for  the  private  gas  works  in  this  country. 
In  1881  there  was  but  one  electric  lighting  plant 
in  the  United  States.  The  Census  Bureau  re- 
ports 818  public  plants  in  1902.  The  central 
station  list  for  1904  gives  927  public  plants, 
and  the  number  is  now  estimated  on  high 
authority  at- more  than  1,000.  The  census  re- 
port shows  that  thirteen  plants  had  changed 
from  private  to  public  operation  for  each  plant 
that  had  changed  the  other  way. 

Municipal  ownership  of  street  railways  in 
this  country  is  as  yet  in  embryo.2 

i  According  to  the  study  in  Baker's  Water  Manual  of  1897 
there  had  been  205  changes  from  private  to  public  ownership 
and  only  20  changes  the  other  way.  (See  Equity  Series, 
"City  for  the  People,"  p.  204.) 

2  A  municipal  street  railway  system  in  Monroe,  La.,  was 


GEOWTH   OP   GOVERNMENTAL   FUNCTIONS         107 

In  Great  Britain  over  three-quarters  of  the 
water  works  are  owned  by  the  local  authorities. 
More  than  half  the  gas  supply  outside  of  Lon- 
don has  been  municipalized ;  more  than  half  the 
electric  lighting  plants  belong  to  municipalities, 
and  about  half  the  tramway  undertakings  are 
owned   and   operated   by   municipalities   with 

opened  for  business  August  I,  1906.  Mayor  Forsythe  says 
the  enterprise  is  so  successful  that  "the  net  receipts  will 
equal  principal  and  interest  of  the  total  cost  in  about  seven 
years."  It  is  stated  further  that  the  system  has  recently 
been  extended  eight  miles  to  a  suburban  park,  in  which  the 
city  offers  free  bathing  and  boating  to  all  who  care  to 
avail  themselves  of  the  privilege.  The  Municipal  Journal 
and  Engineer  of  November  28,  1906,  says  of  this  undertaking: 
"Two  years  ago  the  success  of  the  city's  move  in  taking  over 
the  water  and  lighting  plants  moved  the  mayor  and  citizens 
to  go  before  the  State  Legislature  and  have  the  city's  charter 
changed  so  as  to  permit  it  to  own  and  operate  the  street 
railway  system.  The  system  is  said  to  be  first-class  in  every 
respect." 

A  street  railway  service  over  the  Brooklyn  Bridge  was 
owned  and  operated  jointly  for  some  years  by  the  cities  of 
New  York  and  Brooklyn  with  entire  honesty  and  marked 
success,  but  was  finally  leased  to  the  elevated  in  order  to 
unify  the  service  so  that  travellers  would  not  have  to  change 
cars  after  they  crossed  the  bridge.  The  municipality  of 
Guelph,  Ont.,  also  operates  a  small  street  railway,  the  cause 
of  municipalization  being  stated  to  be  "public  demand  and 
failure  of  the  private  corporation  to  make  a  success."  To- 
ronto, Ont.,  bought  her  street  railways  with  the  view  of 
leasing  them  for  company  management  under  a  contract 
providing  for  a  large  degree  of  public  control,  and  in  the 
interim  between  the  old  and  new  company  managements,  the 
city  operated  the  lines. 


108         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

nearly  60%  of  the  total  track  mileage.  How- 
rapid  has  been  the  development  in  this  field 
may  be  seen  from  the  fact  that  when  Leeds  and 
Glasgow  adopted  the  policy  of  municipal  oper- 
ation in  1894,  only  three  municipalities,  Hud- 
dersfield,  Plymouth  and  Blackpool,  had  public 
tramways.  In  the  next  twelve  years,  1895  to 
1906,  more  than  seventy  of  the  larger  towns 
and  cities  followed  the  example  of  Glasgow, 
and  the  only  places  in  the  kingdom  of  any  large 
importance  that  have  not  adopted  the  policy  of 
municipal  operation  are  Dublin,  Bristol  and 
Edinburgh.3 

Basic  causes  for  public  ownership.  The 
main  cause  of  this  movement  for  the  munici- 
palization of  public  utilities  are  to  be  found  in 
the  desire:  (1)  To  secure  a  better  and  more 
extended  service.  (2)  To  obtain  lower  rates. 
(3)  To  secure  for  the  city  the  profits  of  public 
service  industries.  (4)  To  improve  the  condi- 
tions of  labor.  (5)  To  identify  the  interests 
of  owners  and  the  public  and  bring  into  har- 
mony with  the  public  welfare  powerful  monop- 
oly interests,  which  in  private  hands  manifest 
more  or  less   opposition  to   the  public  good. 

3  In  Germany  also  rapid  progress  has  been  recently  made 
in  the  municipalization  of  street  railways,  some  thirty  of 
the  leading  cities  having  adopted  municipal  operation  in  the 
space  of  a  dozen  years. 


GROWTH   OF   GOVERNMENTAL.  FUNCTIONS        109 

(6)  To  secure  to  the  city  direct,  continuous  and 
complete  control  of  its  streets  and  all  monopoly 
uses  of  them.  In  the  United  States  the  princi- 
pal causes  of  the  municipal  ownership  move- 
ment have  been  the  tendencies  to  over-capitali- 
zation, excessive  charges  and  disregard  of 
public  health  and  safety  manifested  by  private 
companies,  and  their  corrupt  and  demoralizing 
relations  with  our  governments  and  public 
officials. 

Growth  of  industrial  cooperation.  The  per- 
sonal observations  of  the  writer  in  all  the 
leading  countries  of  Europe,  and  in  this  country 
as  well,  have  deeply  impressed  him  with  the 
vitality  and  value  of  voluntary  industrial  and 
commercial  cooperation.  In  Great  Britain 
alone  2,500,000  cooperators  are  united  in  a  solid 
union  with  two  great  wholesale  societies,  5,000 
retail  stores  and  many  factories.  They  are  do- 
ing a  total  business  of  about  $500,000,000  a 
year;  with  $50,000,000  of  profits,  all  of  which 
go  back  to  the  working  people  in  the  shape  of 
dividends  on  purchases  and  wages,  instead  of 
going  to  build  the  fortunes  of  millionaire  man- 
ufacturers and  wealthy  store  keepers.  In  forty 
years  population  has  increased  43% ;  manu- 
factures 52%  ;  international  commerce  130%  ; 
and  cooperative  business  over  5,300%.  So  that 
cooperation  in  England  has  grown  more  than 


110         LEGAL   DOCTRINE   AND   SOCIAL  PEOGEESS 

forty  times  as  fast  as  her  international  trade, 
one  hundred  times  as  fast  as  her  manufactures, 
and  130  times  as  fast  as  the  population.  When 
we  remember  that  her  international  trade  and 
her  manufactures  are  England's  special  pride, 
the  most  important  and  energetic  elements  of 
her  competitive  business,  we  may  realize  in 
some  degree  how  marvelous  has  been  the  prog- 
ress of  British  cooperation.4 

In  the  United  States  cooperative  insurance 
and  banking  have  attained  large  proportions 
and  cooperative  dairying  is  also  well  developed 
in  many  states.  While  in  manufactures  and 
distribution,  cooperation  has  as  yet  made  com- 
paratively little  headway  in  this  country,  there 
still  are  several  hundred  prosperous  coopera- 
tive stores.  Cooperative  buying  and  coopera- 
tive marketing  of  products  has  attained 
enormous  proportions  among  the  farmers  and 
fruit  growers.  One  California  association 
does  an  annual  business  of  $10,000,000;  and 
another  in  that  state  has  seventy-five  local 
stores.  One  society  with  headquarters  at  In- 
dianapolis claims  200,000  members.  And  Iowa 
alone  is  said  to  have  250  grain  elevators  owned 

*  See  the  Arena,  for  July,  1903,  "The  Rise  of  Cooperation 
in  Europe,"  by  the  present  writer,  with  a  diagram  of  the 
movement  in  Great  Britain  and  a  statement  of  the  sixteen 
principal  reasons  for  the  astonishing  development  of  her 
cooperative  industries. 


GROWTH   OF   GOVERNMENTAL   FUNCTIONS         111 

and  operated  cooperatively  by  the  farmers  in 
their  fight  against  speculators  and  the  railroads 
for  fair  prices. 

Government  already  performs  many  lines  of 
cooperative  service.  The  U.  S.  government 
through  its  Department  of  Agriculture  is 
cooperating  with  the  farmers  in  various  parts 
of  the  country  for  the  development  of  agricul- 
ture; and  Federal  cooperation  with  state  and 
individual  enterprise  for  the  development  of 
natural  resources  has  shown  a  decided  tendency 
to  increase  in  recent  years. 

The  trusts  are  a  great  cooperation.  But 
most  vigorous  of  all  movements  towards  coop- 
eration in  this  country  is  the  growth  of  trusts 
and  combines.  Every  trust,  on  the  inside,  is  a 
cooperation  in  place  of  a  former  competition; 
and  as  it  grows  in  size  or  affiliates  with  other 
organizations,  the  area  of  cooperation  expands. 
This  process,  together  with  coordination  of 
labor  organizations  and  the  growing  control  of 
the  law  over  industrial  combinations  in  the  in- 
terest of  the  public,  will  probably  become,  in 
the  not  far  distant  future,  one  of  the  most 
potent  means  of  transforming  whole  sections  of 
the  industrial  system  to  cooperative  conditions. 

The  law  should  adapt  itself  quickly  to  mod- 
ern industry.  Trusts  and  combines  result  from 
the  action  of  the  beneficent  principles  of  union 


112         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

and  cooperation.  Industrial  organization  is 
almost  as  important  as  civic  organization. 
Men  united  into  tribes,  states  and  nations  be- 
cause they  found  that  a  political  combination 
gave  them  strength  for  defense,  aggression  and 
civic  action  in  general,  and  they  are  learning 
to  unite  in  great  industrial  organization  be- 
cause they  find  that  combination  in  industry 
means  economy  and  increase  of  power. 

Industrial  combination  is  in  itself  an  eco- 
nomic and  social  benefit.  There  are  many 
cases  on  record  in  which  combination  in  man- 
ufactures has  resulted  in  saving  one-half  to 
three-quarters,  or  even  four-fifths  of  the  labor 
and  capital  required  to  yield  an  equal  product 
under  the  former  competitive  conditions. 

The  law  should  foster  all  these  movements, 
the  growth  of  trusts  no  less  than  the  develop- 
ment of  voluntary  cooperation  in  other  forms. 
Our  legislators  have  made  a  great  mistake  in 
endeavoring  to  crush  out  trusts  and  combines 
instead  of  aiming  to  suppress  the  abuses  of 
combination  and  repress  the  anti-social  forms 
of  industrial  organization,  while  encouraging 
the  development  of  combinations  not  antago- 
nistic to  the  public  good. 

Competition  means  economic  waste,  bad 
character  product,  and  civic  and  social  damage. 
The  temporary  relief  to  the  public  in  the  mat- 


GROWTH   OF   GOVERNMENTAL   FUNCTIONS         113 

ter  of  prices  is  secured  at  unreasonable  cost. 
For  many  years  economists  have  recognized 
these  truths  in  relation  to  water  supply,  gas 
and  electric  light  and  street  railway  systems. 
And  now  this  old  principle  is  coming  to  be  rec- 
ognized as  equally  applicable  to  trusts  and 
combines. 

Trusts  are  here  to  stay.  The  destruction  of 
trusts  and  combines  is  a  false  aim.  In  the 
first  place,  it  is  impracticable.  Trusts  and 
combines  exist  in  obedience  to  the  law  of  in- 
dustrial gravitation  which  outranks  any  law 
that  Congress  or  legislature  can  enact.  It  is 
impossible  by  any  legislation  practicable  in  a 
free  country  to  prevent  men  from  acting  in 
harmony  if  they  have  the  sense  and  character 
to  do  so.  We  may  prevent  corporations  from 
holding  stock  in  other  corporations,  but  we  can- 
not prevent  individuals  from  buying  stocks  or 
uniting  properties  by  purchase  or  exchange  of 
interests  therein.  Combination  is  so  profita- 
ble that  it  continues  to  exist  and  multiply  even 
in  the  forms  prohibited  by  law. 

They  are  of  great  economic  value.  In  the 
second  place,  the  destruction  of  trusts  and 
combines  is  undesirable,  combination  being  in 
itself  a  social  and  industrial  good.  It  is  not 
combination,  but  the  abuse  of  the  power  of 
combination  that  ought  to  be  abolished.    The 


114         LEGAL   DOCTRINE   A1STD   SOCIAL   PROGRESS 

real  problem  is  to  adopt  measures  that  will  se- 
cure the  fair  distribution  of  the  benefits  of 
combination  and  prevent  the  absorption  of  an 
undue  share  of  those  benefits  by  a  few  indi- 
viduals, or  any  arbitrary  or  unjust  use  of  the 
powers  of  combination  for  private  purposes  of 
the  controlling  owners. 

When  John  D.  Eockefeller,  in  his  Standard 
Oil  statement,  intimates  that  laws  against 
trusts  and  combines  are  foolish  and  unjust,  he 
is  talking  economic  sense.  Since  industrial 
combination  is  one  of  the  principal  sources  of 
economy,  power  and  efficient  service,  to  pro- 
hibit such  combination  is  to  prohibit  the  econ- 
omy and  efficiency  that  come  through  combina- 
tion. To  prosecute  and  fine  combination  is  to 
prosecute  and  fine  economy  and  efficiency. 
Our  anti-combine  legislation  makes  economy  a 
crime,  progress  a  misdemeanor,  and  efficiency  a 
felony.  This  is  all  wrong,  and  so  far,  John  D. 
Eockefeller  is  all  right. 

But  they  must  be  strictly  regulated  by  law. 
But  he  intimates  that  the  men  in  possession  of 
trusts  and  combines  should  be  left  to  manage 
them  according  to  their  own  sweet  wills,  no 
matter  if  they  make  excessive  charges,  use  un- 
fair methods  to  crush  out  would-be  rivals,  sell- 
ing low  at  competitive  points  while  selling  high 
at  non-competitive  points,  resorting  to  rebates 


GROWTH   OF   GOVERNMENTAL   FUNCTIONS         115 

or  railroad  favoritism  of  other  types,  and  us- 
ing the  power  of  combination  to  evade  or  defy 
the  law,  corrupt  governments  and  courts,  op- 
press labor,  and  fleece  the  public,  taking  to 
themselves  all  the  benefits  of  the  economies 
achieved  by  combination,  and  adding,  perhaps, 
new  plunder  by  lifting  prices  above  the  normal 
level  of  the  competitive  regime  that  was  for- 
merly in  vogue ;  that  combine  managers  should 
be  left  to  operate  the  business  as  they  please, 
he  is  talking  economic,  political  and  social 
nonsense. 

The  law  should  clearly  separate  the  use  from 
the  abuse,  and  should  encourage  the  former 
and  suppress  the  latter. 

Cooperation  will  make  great  changes  in  the 
law.  The  important  changes  in  industrial  and 
social  life  and  institutions  that  mark  the  move- 
ment from  competition  to  cooperation  will  in- 
volve great  modifications  in  our  law,  modifica- 
tions which  are  already  in  process  in  the  field 
of  public  ownership,  the  legislative  attitude  to- 
ward industrial  combination,  etc.,  and  which  in 
the  end  will  not  only  remold  many  parts  of  our 
legal  system  but  will  annihilate  large  and  com- 
plex sections  of  it  and  replace  them  with  a  few 
simple  principles  of  cooperative  service  and 
regulation. 

The  law  and  society  act  and  react  on  each 


116         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

other.  The  law  is  a  growth,  a  development, 
an  evolution  accompanying  social  evolution  in 
general,  partly  as  cause  and  partly  conse- 
quence. The  interaction  is  constant  and 
vigorous.  On  the  one  hand,  for  example,  tariff 
laws  and  franchise  grants  create  monopolies 
with  their  far-reaching  consequences.  While  on 
the  other  hand,  the  development  of  machinery 
breaks  down  the  feudal  system  and  abolishes 
its  laws  and  customs,  the  growth  of  trade 
unions  modifies  the  conspiracy  laws,  the  factory 
laws,  the  whole  body  of  labor  legislation,  and 
demands  the  modification  of  the  laws  relating  to 
injunctions  and  proceedings  in  contempt.  The 
religious  devotion  of  early  New  England  wrote 
the  blue  laws  which  went  so  far  as  to  make  it 
a  penal  offense  "if  a  boy  should  sing  or  whistle 
on  the  Lord's  day"  or  "shall  go  to  sleep  in 
church"  or  "shall  chase  a  girl"  or  "shall 
laugh  in  Public  School";  while  the  irreligion 
of  the  West  frames  laws  that  permit  the  stores 
and  theaters  and  saloons  and  everything  else 
to  run  wide  open  on  the  Sabbath  day.  The 
growth  of  the  sentiment  for  human  liberty  wipes 
the  slave  laws  from  the  statute  books.  Smaller 
changes  are  constantly  in  progress.  Every 
legislature  and  every  court  is  an  institution 
with  ample  powers  and  opportunities  for  the 
modification  of  the  law. 


GROWTH   OF   GOVERNMENTAL   FUNCTIONS        117 

The  law  has  grown  and  must  grow.    Every 
lawyer,  judge  and  statesman  ought  to  do  his 
best  to  leave  the  law  at  least  a  little  better  than 
he  found  it.    He  is  not  called  upon  to  try  to 
write  the  ideal  on  the  statute  books  at  once. 
But  it  is  his  duty  and  his  privilege  to  aid  in 
a  reasonable  movement  in  that  direction.     The 
law  is  naturally  conservative.    It  cannot  be  ex- 
pected to  keep  abreast  of  the  best  thought. 
Its  movement  is  obstructed  by  the  ignorance, 
apathy  and  self-interest  of  legislators,  and  by 
the  inadequacy  of  popular  education  and  the 
machinery  of  self-government.    It  takes  time 
to  crystallize  public  sentiment  into  law.     The 
people  have  no  adequate  means  of  expressing 
and  enforcing  their  will  even  after  they  have 
thought  out  a  new  advance.    Yet  many  times 
the  progress  of  the  law  is  quite  as  fast  as  is 
fair  to  all  the  interests  involved.     It  will  not 
do  to   sweep  away  too   ruthlessly  the  vested 
rights  and  interests  that  have  been  allowed  to 
grow  up  under  the  sanction  of  existing  laws, 
nor  to  sacrifice  too  far  the  present  generation 
to  the  future.    Evolution  not  revolution,  should 
be  the  method  of  advance  wherever  possible. 

Changes  must  promote  the  happiness  of  this 
generation.  Society  is  not  an  organism  with 
a  single  conscious  center  that  endures  from  age 
to  age.    On  the  contrary,  every  cell  is  conscious, 


118         LEGAL   DOCTRINE   AND   SOCIAL  PROGRESS 

and  the  cells  live  but  a  few  years.  The  object 
now  is  the  happiness  of  the  individuals  of  this 
generation,  and  the  law  of  a  republic  as  a  rule 
will  not  be  changed  so  rapidly  as  to  make  the 
loss  to  the  living  greater  than  the  gain  to  them, 
including  in  gain  and  loss  not  only  the  material 
elements  involved  but  the  intellectual  and 
spiritual  elements  also.  Will  it  pay  in  its 
total  results  or  will  it  cost  more  than  it  comes 
to, — will  the  cost  to  the  purchaser  exceed  the 
benefit  to  him,  considering  all  the  purposes 
he  has  in  view?  Those  are  the  fundamental 
questions.  The  complexities  of  the  problem 
may  obscure  the  judgment  many  times,  and 
rough  estimates  may  be  made  without  fully  un- 
derstanding either  the  impulse  or  the  out- 
come, but  consciously  or  unconsciously  the 
movement  of  the  law  in  a  republic  hinges  on 
the  question  of  cost  of  living — the  question  of 
profit  and  loss  to  the  present  generation. 
Under  a  monarchy  generation  after  generation 
may  be  sacrificed  to  the  future.  But  under  a 
system  of  self-government  the  people  will  not 
serve  the  purposes  of  the  future  any  further 
than  those  purposes  have  become  their  own 
through  development  of  material  interests,  in- 
tellectual ideals,  or  moral  purposes.  They 
may  sacrifice  their  lower  to  their  higher 
natures;   they  may,  give   their  lives  for  the 


GROWTH   OF   GOVERNMENTAL   FUNCTIONS         119 

Union  or  for  the  cause  of  liberty;  but  the  pur- 
poses they  serve  will  be  their  own,  they  cannot 
sacrifice  their  totalities,  physical  and  mental,  to 
the  future. 

The  object  of  the  law  demands  certain 
changes  now.  Wise  statesmanship  will  look 
for  the  next  step  in  the  line  of  each  advance, 
take  the  step  carefully  and  give  society,  men 
and  institutions,  time  to  adjust  themselves  to 
the  new  conditions  before  taking  another  step 
in  the  same  line  of  progress.  A  number  of  im- 
portant movements  are  before  the  people  and 
the  government  now,  claiming  attention  as  next 
steps  in  the  progress  of  civilization  in  their 
respective  fields.  Some  of  the  proposed 
changes  will  be  noted  in  the  following  chapter. 


VII 


CURRENT    EEFOEM    MOVEMENTS    DEMAND    AND    AR1 
MAKING  CHANGES  IN   THE  LAW 

In  stating  these  measures,  instead  of  using  the 
judicial  form,  we  will  adopt  in  a  large  degree 
the  language  of  those  who  are  advocating  the 
various  movements  in  order  to  present  them 
with  something  like  the  form  and  force  that 
characterizes  them  as  they  come  before  our 
legislative  bodies  demanding  their  increased 
recognition  in  the  law. 

(1)  Direct  legislation.  The  Initiative  and 
Eeferendum ;  in  order  that  the  people  may  have 
real  and  continuous  control  of  the  government 
instead  of  the  mere  privilege  of  periodic  selec- 
tion of  a  new  set  of  masters,  whose  will  during 
their  term  of  office  is  the  real  sovereign  power 
in  place  of  the  people's  will. 

(2)  Popular  nominations.  Direct  nomina- 
tions by  popular  petition  only,  in  order  to  de- 
stroy the  control  over  nominations  which  rings 
and  bosses  possess  under  the  system  of  caucus 
and  convention. 

(3)  Proportional     representation.    Propor- 

120 


EEFORMS   MAKE   CHANGES   IN   THE   LAW       121 

tional  representation,  in  order  that  every  class 
and  interest  of  substantial  weight  in  each  com- 
munity shall  be  represented  in  true  proportion 
in  the  legislative  bodies  that  make  the  laws  for 
that  community. 

(4)  Voting  preferences.  Preferential  vot- 
ing or  majority  choice,  in  order  that  single  of- 
ficers, like  mayors,  governors,  etc.,  may  no 
longer  be  subject  to  the  election  by  a  minority 
of  the  voters,  as  under  our  plurality  system, 
but  shall  invariably  be  the  choice  of  the 
majority. 

(5)  Civil  service  reform.  Extension  of 
civil  service  system  to  the  end  that  the  "spoils 
system"  may  be  entirely  eliminated  from 
political  life. 

(6)  Home  rule  for  cities.  Municipal  home 
rule,  or  self-government  in  local  affairs,  such 
as  the  control  of  streets,  water  works,  street 
railways,  fire  departments,  etc.,  national  gov- 
ernment of  national  affairs,  state  government 
of  state  affairs  and  municipal  control  of  dis- 
tinctly municipal  affairs,  constitutes  the  true 
adjustment.  There  is  no  more  reason  to  per- 
mit Boston,  Springfield,  Fall  River,  Lowell  and 
Salem  to  tell  the  city  of  Worcester  how  it  shall 
manage  its  street  railroads,  water  works  or 
electric  lighting  system,  than  there  is  to  per- 
mit Maine,  New  Hampshire,  Vermont,  Ehode 


122         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

Island  and  Connecticut  to  dictate  to  Massachu- 
setts how  she  shall  manage  the  affairs  of 
state. 

(7)  Non-partisan  city  elections.  Separa- 
tion of  municipal  and  state  elections,  and  elimi- 
nation of  all  party  designations  from  municipal 
ballots,  so  that  our  cities  will  have  a  better 
chance  to  manage  their  municipal  business  on 
purely  business  principles,  free  from  the  taint 
of  party  politics,  and  to  elect  municipal  officers 
with  reference  to  their  fitness  for  the  work  to 
be  done  without  regard  to  their  political  affilia- 
tions. 

(8)  Public  ownership.  The  open  door  to 
public  ownership  of  public  utilities,  so  that  our 
cities  may  own  and  operate  street  railways, 
lighting  plants,  etc.,  if  they  so  desire. 

(9)  Exemption  of  revenue-producing  prop- 
erties from  the  municipal  debt  limit. 

(10)  Provision  for  the  valuation  of  all  pub- 
lic utilities  from  railroads  down  to  water  works, 
in  order  to  secure  a  fair  basis  for  the  regulation 
of  rates  and  for  estimates  of  compensation  in 
case  of  public  purchase. 

(11)  Diffusion  of  wealth.  Progressive  in- 
come and  inheritance  taxes  to  aid  the  diffusion 
of  wealth,  which  should  be  one  of  the  prime  ob- 
jects of  statesmanship  and  to  provide  funds 
for  public  use  by  a  system  of  taxation  most  in 


REFORMS   MAKE   CHANGES   IN   THE   LAW      123 

harmony  with  the  well-established  principle  al- 
ready referred  to,  that  equality  in  taxation 
means  equality  in  sacrifice. 

(12)  A  form  of  "single  tax."  The  sociali- 
zation of  land  values  due  to  the  growth  of  popu- 
lation and  the  development  of  civilization, 
either  by  public  purchase  or  by  the  gradual  de- 
velopment of  a  system  of  taxing  land  values 
to  absorb  the  unearned  increment  for  public 
use. 

(13)  Control  of  corporations.  The  regula- 
tion of  trusts  and  combines. 

Several  methods  of  dealing  with  trusts  and 
combines  are  here  proposed. 

We  may  let  them  alone.  That  might  suit  the 
trust  magnates,  but  can  hardly  be  regarded  as 
adequate  from  the  standpoint  of  the  public 
good. 

We  may  prohibit  them.  The  original  savage 
impulse  is  to  destroy  whatever  seems  to  injure 
us.  This  primitive  instinct  crops  out  fre- 
quently in  civilized  man  and  even  in  the  most 
advanced  communities,  which  sometimes  mani- 
fest a  reversion  to  the  savage  type  of  conduct, 
and  resort  to  blind  laws  against  trusts  and  com- 
bines, trying  to  destroy  what  is  good  as  well 
as  what  is  bad.  This  method  cannot  succeed 
and  should  not  succeed. 

We  may  try  to  remove  the  causes  of  the 


124        LEGAL   DOCTRINE   AND   SOCIAL  PROGRESS 

growth  and  power  of  trusts  and  combines.  The 
plan  of  removing  the  protection  of  the  tariff 
from  industries  in  which  large  monopolies 
have  developed  is  of  this  class,  as  are  also  laws 
against  rebates  and  railroad  favoritism,  laws 
forbidding  a  corporation  to  hold  stock  in 
other  corporations,  and  laws  requiring  that 
goods  be  sold  at  the  same  price  to  all  comers  at 
the  factory  door. 

We  may  rely  upon  investigation  and  pub- 
licity. Publicity  no  doubt  does  have  a  power- 
ful restraining  effect  on  the  conduct  of  busi- 
ness affairs  wherever  the  managers  have  not 
lost  all  conscience  and  sensitiveness  to  the  ap- 
probation of  their  fellow  men.  But  in  the  very 
worst  cases  where  relief  is  most  imperative, 
publicity  has  proved  of  little  or  no  avail.  The 
public  has  known  for  many  years  the  frauds 
and  iniquities  of  Standard  Oil  and  the  beef  com- 
bine, and  yet  those  evils  have  continued  in  one 
form  or  another  with  practically  unabated  viru- 
lence. 

We  may  provide  for  Federal  license  and 
incorporation  with  thorough  and  continuous 
supervision  by  Federal  authorities.  This  is  an 
excellent  plan  from  which  much  good  may  be  ex- 
pected. But  we  cannot  hope  in  this  way  to 
prevent  excessive  charges  or  the  secret  use  of 
combine  power  for  anti-public  purposes. 


REFORMS   MAKE    CHANGES   IN    THE   LAW       125 

We  may  enact  that  prices  and  wages  shall  be 
subject  to  final  adjudication  by  boards  of  arbi- 
tration representing  all  three  parties  in  inter- 
est, namely,  labor,  capital  and  the  public.  It 
is  not  fair  for  either  party  to  a  sale  or  contract 
to  fix  the  terms.  In  a  monopolized  industry  it 
is  unfair  to  permit  the  seller  to  fix  the  price, 
and  it  would  be  equally  unfair  for  the  public, 
which  is  the  buyer  in  this  case,  to  fix  the  price. 
The  only  recourse  in  harmony  with  economic 
and  ethical  principles  is  the  fixing  of  prices 
and  wages  by  decision  of  impartial  tribunals. 

We  may  adopt  a  system  of  graded  taxes ;  put- 
ting a  high  rate  of  taxation  on  aggressive,  anti- 
public  combines  which  refuse  to  open  their  books 
to  public  inspection,  or  make  fair  prices,  or 
reasonable  capitalization,  etc.;  and  a  low  rate 
of  taxation  on  public  spirited  combines  which 
open  their  books  to  public  inspection  and  make 
fair  capitalization,  just  prices,  etc. 

The  reason  that  men  combine  to-day  in  anti- 
social forms  is  that  profit  lies  in  that  direction. 
If  profit  can  be  severed  from  anti-social 
methods  and  attached  to  forms  of  organiza- 
tion and  management  that  are  in  harmony  with 
the  public  good,  while  loss  is  attached  to  anti- 
social conduct,  men  will  adopt  the  superior 
types  of  organization  and  business  methods, 
and  trusts  and  combines  will  become  coopera- 


126         LEGAL,   DOCTRINE   AND    SOCIAL   PROGRESS 

tive  and  public  spirited  instead  of  aggressive 
and  anti-public. 

We  may  provide  that  labor  and  the  public 
shall  be  recognized  as  partners  in  monopolistic 
industry  and  entitled  to  elect  representatives  to 
act  on  the  board  of  directors. 

We  may  resort  to  temporary  public  operation 
of  the  business  of  trust  and  combines  which 
violate  the  law.  If  a  corporation  cannot  pay 
its  debts  a  receiver  may  be  appointed  by  the 
court  to  manage  the  business  of  the  company 
until  it  is  once  more  on  a  sound  basis.  So,  if  a 
trust  or  combine  is  convicted  of  breaking  the 
law  a  public  officer  might  be  appointed  by  the 
court  who  should  manage  the  business  under 
supervision  of  the  court,  using  the  profits  to 
pay  off  and  extinguish  the  watered  stock  or  ex- 
cess capital,  reduce  wages  to  a  fair  level,  see 
that  labor  had  reasonable  wages  and  just  con- 
ditions, and  bring  the  whole  business  into 
harmony  with  law  and  the  public  good.  Then 
the  property  could  be  returned  to  the  company 
to  be  managed  under  careful  and  persistent 
supervision  with  salutary  fear  of  public  man- 
agement in  case  of  any  further  serious  breach 
of  law. 

We  can  establish  permanent  public  operation 
of  monopolistic  industries,  acquiring  title  by 
the  issue  of  public  bonds  or  through  purchase 


KEFORMS   MAKE   CHANGES   IN"   THE   LAW       127 

with  funds  raised  by  progressive  income  and 
inheritance  taxes,  or  in  any  one  of  several 
other  ways  that  have  been  frequently  urged 
upon  the  public.  In  the  case  of  railroads, 
street  railways,  lighting  systems  and  other 
natural  monopolies  where  the  problem  cannot 
be  adequately  met  by  the  development  of  volun- 
tary cooperation,  public  ownership  is  the  ulti- 
mate solution,  care  being  taken  in  all  cases  that 
political  conditions  shall  be  made  such  as  to  af- 
ford a  reasonable  prospect  of  successful  public 
operation  of  these  important  properties.  In 
commerce,  manufactures,  and  agriculture,  on 
the  other  hand,  where  the  field  is  open  for  the 
most  part,  to  the  growth  of  voluntary  coopera- 
tion, legislative  cooperation  should  not  be  re- 
sorted to  until  every  reasonable  effort  has  been 
made  to  solve  the  problem  by  methods  of  volun- 
tary action  under  the  direction  and  encourage- 
ment of  wise  laws. 

(14)  Public  ownership  of  monopolies.  The 
abolition  of  private  monopoly. 

We  have  seen  that  it  is  held  by  the  courts 
that  on  the  fundamental  principles  of  justice  in- 
herent in  every  government  taxation  cannot  be 
levied  for  a  private  purpose,  but  only  for  a 
public  purpose,  and  that  an  act  levying  taxes 
or  authorizing  the  levy  of  taxes  for  a  private 
purpose,  as,  for  example,  to  bestow  the  money 


128         LEGAL   DOCTRINE   AND   SOCIAL   PEOGEESS 

on  a  manufacturing  company  under  private  con- 
trol and  operated  for  private  profit  is  beyond 
the  power  of  a  legislative  body  in  a  free  country, 
being  not  an  act  of  legislation  but  of  confisca- 
tion. 

Every  private  monopoly  involves  the  power 
of  taxation  for  private  purposes.1  Wherefore 
no  legislative  authority  in  a  republic  has  a 
right  to  establish  or  permit  a  private  mo- 
nopoly. It  follows  that  every  franchise  grant 
or  legislative  act  creating  or  protecting  a  private 
monopoly  is  a  violation  of  fundamental  prin- 
ciples of  justice  inherent  in  our  system  of  gov- 
ernment. 

(15)  The  conservation  of  natural  resources, 
forests,  mines,  waterfalls,  etc. 

(16)  The  establishment  of  a  parcels  post. 

(17)  A  national  telegraph  and  telephone 
system  in  connection  with  the  postal  service. 

(18)  Postal  savings  banks  in  order  that  the 
people's  money  may  be  absolutely  safe  and  the 
savings  of  the  common  people  may  be  invested 
for  public  improvements  and  other  purposes 
more  in  harmony  with  the  public  good  than  the 
Wall  Street  investments  to  which  our  bank  de- 
posits are  now  so  largely  devoted. 

(19)  Government  insurance,  loans  and  bank- 

i  See  the  discussion  of  Municipal  Charges  in  Mill's  Political 
Economy. 


REFOKMS   MAKE    CHANGES   IN   THE   LAW      129 

ing.  Government  insurance  so  that  loss  may 
be  diffused  as  widely  as  possible  and  certainty 
of  payment  be  rendered  absolute  and  the  cost 
reduced  to  a  minimum. 

(20)  A  government  loan  office  operating 
through  the  Post  Office  and  lending  money  at 
low  interest  on  reasonable  security  so  that 
farmers  and  workingmen  may  be  able  to  bor- 
row on  terms  as  advantageous  as  those  which 
are  obtained  by  the  great  capitalists  from  our 
private  banks. 

(21)  The  issue  of  all  money  by  the  Govern- 
ment and  the  management  of  the  money  system 
by  public  authority  in  the  public  interest. 

(22)  Direct  election  of  U.  S.  Senators.  The 
election  of  United  States  Senators  directly  by 
the  people  to  the  end  that  the  Senate  may  be- 
come as  truly  representative  and  as  responsive 
to  the  will  of  the  people  as  the  House  of  Kepre- 
sentatives. 

(23)  Curb  the  Speaker.  The  abolition  of 
the  autocratic  power  of  a  Speaker  of  the 
National  House,  so  that  he  may  no  longer  be 
able  to  interpose  his  will  to  prevent  the  passage 
or  even  the  discussion  of  laws  demanded  by  the 
people,  but  which  are  objectionable  perhaps  to 
the  prejudice  of  the  Speaker  or  the  interests 
which  he  may  represent. 

(24)  Old  age  pensions  and  disability  annui- 


130         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

ties,  in  order  that  industrial  veterans  and  dis- 
abled workers  may  have  a  reasonable  support 
without  the  ignominy  of  a  transfer  to  the  poor- 
house. 

(25)  Industrial  arbitration  or  judicial  de- 
cision of  labor  disputes.  In  primitive  times  all 
difficulties  were  settled  by  combat,  but  as  civil- 
ization has  advanced  the  method  of  judicial  de- 
cision has  been  substituted  for  the  method  of 
combat  in  all  classes  of  dispute  except  inter- 
national difficulties  and  labor  contests.  Inter- 
national questions  are  now  rapidly  being 
brought  within  the  scope  of  judicial  procedure 
so  that  industrial  disputes  are  practically  alone 
in  the  resort  to  primitive  methods  of  decision. 
If  two  men  cannot  agree  upon  their  rights,  they 
are  not  permitted  to  fight  out  their  troubles  in 
the  public  streets,  but  must  go  into  court  and 
submit  to  the  judgment  of  an  impartial  tri- 
bunal. A  corporation  and  its  employes  have 
no  more  right  to  fight  out  their  difficulties  in  the 
streets  to  the  disturbance  of  the  public  business 
and  the  production  of  great  loss,  not  only  to 
themselves  but  to  the  public;  and  our  laws 
should  provide  for  arbitration  on  the  request 
of  either  party  to  an  industrial  dispute,  on  the 
lines  that  have  been  adopted  in  Australia  and 
New  Zealand. 

(26)  The    complete    establishment    of    an 


BEFORMS   MAKE    CHANGES   IN    THE   LAW       131 

eight-hour  working  day,  so  that  the  working 
classes  may  have  sufficient  time  for  the  cultiva- 
tion of  the  social  and  intellectual  elements  of 
life. 

(27)  Work  for  the  unemployed.  Becogni- 
tion  of  the  right  to  work.  In  this  complex  civil- 
ization of  ours,  it  is  many  times  impossible 
for  men  who  are  able  and  willing  to  work  to 
find  the  opportunity.  No  guarantee  of  the 
right  to  life,  liberty  and  the  pursuit  of  happi- 
ness can  avail  unless  the  right  to  an  oppor- 
tunity to  earn  an  honest  living  is  also  guaran- 
teed. The  task  of  keeping  an  adequate  record 
of  the  need  for  labor  of  various  kinds  in  differ- 
ent parts  of  this  great  country  and  of  placing 
men  where  there  is  a  demand  for  the  services 
they  can  render  is  too  much  for  any  private  in- 
stitution, and  should  be  undertaken  by  our  gov- 
ernments, municipal,  state  and  national.  In 
Massachusetts  a  State  Employment  Office  has 
already  been  established,  but  it  falls  far  short 
of  the  need  and  its  efficiency  does  not  compare 
favorably  with  that  of  the  National  Employ- 
ment Office  in  New  Zealand  and  the  Australian 
Colonies,  where  the  state  uses  the  police  and 
the  post  offices  throughout  the  country  to  keep 
constantly  in  touch  with  all  opportunities  for 
employment,  and  carries  workers  and  their 
families  on  the  state  railways  free  of  cost  to 


132         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

the  places  where  their  labor  is  needed,  the  re- 
mitted fares  to  be  refunded  at  some  future  time 
when  the  earnings  of  the  assisted  workers  may- 
justify  the  payment. 

(28)  The  right  to  be  born  well.  A  system- 
atic effort  to  improve  the  quality  of  the  next 
generation  by  the  encouragement  of  breeding 
from  the  best  and  the  prevention  of  breeding 
from  the  defective  classes. 

(29)  The  rights  of  motherhood.  Becogni- 
tion  of  honest  and  efficient  motherhood  as  a 
public  service;  protection  of  mothers  from 
drudgery,  want,  and  other  conditions  calculated 
to  deteriorate  their  offspring ;  provision  in  the 
public  schools  for  thorough  training  in  the 
sciences  of  parenthood  and  child  culture;  and 
requirement  of  a  working  knowledge  of  the 
principles  of  these  sciences  as  a  condition  prec- 
edent to  the  issue  of  a  marriage  license. 

(30)  Rights  of  childhood.  Prohibition  of 
child  labor  in  factories  and  mines.  A  child  may 
do  some  work  on  a  farm  or  as  a  newsboy  or 
bootblack  without  interference  with  physical  or 
mental  development,  but  the  grinding  toil  of  the 
mill  and  the  mine  stunts  both  the  body  and  soul 
of  the  child. 

(31)  A  guaranty  to  every  child,  so  far  as 
possible,  of  a  wholesome  birth  and  a  bringing 
up   under   conditions    calculated   to    secure   a 


BEFOKMS   MAKE    CHANGES   IN   THE   LAW      133 

healthy  and  effective  development  of  mind  and 
body.  The  present  system  or  lack  of  system 
under  which  hundreds  of  thousands  of  children 
are  allowed  to  be  born  under  bad  conditions  and 
brought  up  underfed,  underclothed,  underedu- 
cated  and  overworked — stunted  in  body,  mind 
and  character — is  the  most  short-sighted 
public  policy  it  would  be  possible  to  imagine, 
for  it  pollutes  the  stream  of  life  and  civiliza- 
tion at  its  very  source. 

(32)  A  better  criminology  coming.  Im- 
provement of  the  criminal  law.  At  the  dawn 
of  history  the  prime  object  of  the  criminal  law 
was  vengeance.  Now  the  main  emphasis  is 
placed  on  the  deterent  power  of  punishment, 
with  some  attention  to  reformation.  The  need 
is  the  adoption  of  better  means  of  prevention 
and  reformation.  Probation  of  first  offenders 
and  of  women  and  boys  not  only  of  the  first 
but  on  later  offenses  also,  if  need  be  in  the  dis- 
cretion of  the  judge,  is  one  of  the  methods  by 
which  excellent  results  have  been  secured  where 
it  has  been  adequately  tried.  It  is  much  better 
to  save  the  young  offender  by  sympathetic 
treatment  and  careful  watching  than  to  im- 
prison the  new  recruit  with  hardened  criminals 
and  risk  the  perpetuation  and  intensification 
of  the  disease  by  contact  with  the  contagion  of 
inveterate    cases.    Judge    Lindsey's    Juvenile 


134         LEGAL   DOCTRINE   AND   SOCIAL   PEOGEESS 

Court  in  Denver  has  achieved  most  notable  re- 
sults on  these  lines. 

Where  punishment  is  meted  out,  certainty  and 
rapidity  are  far  more  important  than  severity ; 
and  more  speedy  trial  and  execution  of  judg- 
ment are  of  vital  moment. 

The  old  methods  of  punishment  ineffective. 
Still  more  important  is  the  indeterminate 
sentence.  The  definite  sentence  of  a  stated 
term  of  months  or  years  is  an  unqualified  evil. 
A  thief  is  convicted  and  sentenced  to  a  year's 
imprisonment.  At  the  end  of  that  time  he  is 
released  with  the  practical  certainty  in  many 
cases  that  he  will  steal  again  at  the  first  op- 
portunity. There  are  said  to  be  in  New  York 
city  more  than  four  hundred  professional 
criminals  well  known  to  the  police.  They  have 
been  arrested  and  convicted  again  and  again, 
and  it  is  perfectly  well  understood  that  they 
go  to  operating  again  as  soon  as  they  are  out 
of  jail.  In  other  words  society  knowingly  per- 
mits four  hundred  inveterate  criminals  to  be  at 
large  to  prey  upon  the  city,  and  employs  a  body 
of  police  and  detectives  to  watch  them  and  run 
them  in  whenever  they  are  smart  enough  to 
catch  them  at  the  game.  It  would  be  just  as 
sensible  to  turn  loose  a  mass  of  tigers  or  wild- 
cats, employ  a  body  of  men  to  watch  them,  ar- 
rest any  of  the  wild  beasts  caught  biting  any 


REFORMS   MAKE    CHANGES   IN    THE   LAW      135 

one,  put  them  in  a  cage  for  a  few  months  and 
then  release  them  to  try  it  over  again.  When 
a  man  has  proved  himself  to  be  of  criminal 
nature  he  should  be  kept  under  close  restraint 
until  he  has  given  evidence  of  reform  sufficient 
to  make  it  safe  to  give  him  his  liberty  again. 
The  law  presumes  a  man  innocent  until  he  is 
proved  guilty.  And  when  he  is  once  proved 
guilty  of  a  serious  offense  the  law  should  pre- 
sume that  the  criminal  nature  remains  un- 
changed until  there  is  reasonable  proof  to  the 
contrary.  Instead  of  a  definite  sentence  of  so 
many  months  or  years  therefore,  the  sentence 
should  be  indeterminate,  its  duration  depending 
on  the  conduct  of  the  prisoner  and  the  evidence 
he  gives  of  sufficient  reformation  to  restore  the 
presumption  of  future  innocence  and  make  it 
safe  for  society  to  restore  his  freedom. 

Reformation  the  goal.  Meanwhile,  during 
his  confinement,  every  effort  should  be  made  to 
aid  the  prisoner  to  regain  his  manhood.  The 
most  successful  methods  so  far  tried  are  the  ap- 
peal to  appetite,  honor  and  the  cultivation  of 
the  power  and  habit  of  useful  industry.  In  one 
of  the  best  prisons  for  example,  where  reforma- 
tion has  been  reduced  to  a  science,  the  method  is 
as  follows:  Three  tables  are  set  in  the  dining 
room  where  all  the  convicts  eat.  At  the  first 
table  the  fare  is  little  more  than  bread  and 


136         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

water.    At  the  second  table  there  is  an  abund- 
ance of  well  cooked  plain  and  wholesome  foods 
but  no  delicacies.    While  those  at  the  third  table 
enjoy  all  the  delicacies  of  the  season  and  the  best 
cooking  obtainable.     The  convicts  who  refuse 
to  work  in  the  prison  shops  sit  at  the  first  table, 
but  they  get  the  fragrant  odors  from  the  other 
tables  and  they  soon  begin  to  ask  for  work. 
Those  who  work  regularly  and  conduct  them- 
selves well  are  entitled  to  seats  at  the  second 
table  and  if  they  achieve  success  in  their  work 
and  attain  a  certain  standard  of  merit  in  labor 
and  conduct,  they  are  promoted  to  the  third 
table.     There    are    carpenter    shops,    machine 
shops,  shoe  factories,  saw  mills,  stone  yards, 
printing  shops,  etc.     The  convict  learns  a  trade 
by  means  of  which  he  can  support  himself  by 
honest  labor  anywhere  in  the  civilized  world. 
He  gets  full  pay  for  the  value  of  the  work  he 
does,  part  of  which  goes  to  pay  the  expenses 
of  his  imprisonment.    Another  part  is  devoted 
to  restitution  or  compensation  to  the  persons 
injured  by  the  wrong  for  which  he  was  com- 
mitted.    Still  another  part  goes  to  the  support 
of  his  family  if  he  has  one.    And  the  remainder 
is  put  to  his  credit  and  paid  over  to  him  when 
he  leaves.     The  time  of  his  release  depends 
upon  his  record.    "When  in  the  judgment  of  the 
Court  he  has  given  sufficient  proof  of  fixed 


EEFOEMS   MAKE    CHANGES   IN   THE   LAW      137 

habits  of  industry  and  good  conduct  he  is  re- 
leased. He  goes  out  with  the  money  he  has 
earned  by  honest  labor  in  his  pocket  and  the 
consciousness  of  skill  that  will  enable  him  to 
make  a  good  living  without  resort  to  crime. 
At  the  prison  gate  he  is  met  by  the  officers  of 
a  sympathetic  organization  that  will  help  him 
find  employment  and  friends  and  keep  him  from 
his  old  associations  until  he  is  firmly  rooted  in 
the  new  life  of  an  honest  citizen  and  has  be- 
come a  useful  member  of  society. 

Such  are  some  of  the  methods  that  should  be 
grafted  into  the  criminal  law  of  all  our  states. 
There  are  other  measures  which  are  very  im- 
portant in  their  relation  to  the  prevention  of 
crime  but  which  are  also  advocated  on  other 
grounds  as  follows. 

(33)  Better  opportunities  for  immigrants. 
Better  immigration  laws.  In  addition  to  sound 
body  and  mind,  good  character  and  visible 
means  of  support,  immigrants  who  come  to  re- 
main in  this  country  should  be  required  to  ac- 
quire a  working  knowledge  of  the  English 
language.  There  should  be  a  national  bureau 
to  help  immigrants  to  place  themselves  in  locali- 
ties where  their  labor  is  needed  and  to  get  a 
foothold  in  the  path  that  leads  to  good  citizen- 
ship and  industrial  independence.  Society  has 
as  much  of  a  duty  to  protect  itself  from  the  in- 


138         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

fection  of  mental  and  moral  disease  and  de- 
basement, as  it  has  to  guard  itself  against 
physical  contagion — as  much  duty  to  determine 
the  sort  of  people  it  will  admit  to  fellowship  as 
members  of  its  communities,  as  a  family  has  to 
decide  what  sort  of  folks  it  will  admit  to  its 
fold,  what  associations  and  influences  shall  be 
brought  to  bear  upon  its  children.  Immigration 
that  is  adapted  to  republican  institutions  and 
twentieth  century  civilization,  is  no  problem, 
but  half-civilized  and  uneducated  populations 
bring  us  an  opportunity  for  social  assimilation 
and  civic  service  of  a  high  order.  The  state 
for  the  general  welfare  must  provide  educa- 
tion, protection  and  opportunity  for  these 
wards.  They  should  be  fed  and  clothed  if 
necessary  while  they  are  taught  the  elements 
of  American  citizenship  and  helped  to  secure 
the  opportunity  to  become  self-supporting. 
They  should  be  if  necessary  compulsorily 
taught,  and  paternally  looked  after  while  their 
opportunity  is  being  found. 

(34)  Government  should  clean  up  the  slums. 
The  slums  of  our  big  cities  are  prolific  sources 
of  disease  and  crime.  The  law  should  provide 
for  the  clearance  of  slum  areas  and  the  perma- 
nent abolition  of  the  conditions  which  now  exist 
in  those  areas  where  thousands  upon  thousands 
of  children  are  being  brought  up  under  circum- 


REFORMS   MAKE   CHANGES   IN    THE   LAW       139 

stances  directly  and  definitely  calculated  to 
create  defectives  and  criminals.  Laws  should 
be  passed  to  enable  our  cities  to  do  as  Birming- 
ham and  other  English  cities  have  done,  namely, 
take  over  slum  areas,  tear  down  congested  and 
unsanitary  buildings,  open  up  wide  thorough- 
fares and  recoup  the  cost  by  retaining  the  owner- 
ship of  the  land  along  the  boulevards  and  rent- 
ing or  building  upon  it  for  the  benefit  of  the 
city. 

(35)  Take  the  profit  out  of  the  saloon. 
Abolition  of  the  traffic  in  liquors  for  the  profit 
of  the  seller.  Just  so  long  as  the  vendors  of 
intoxicants  can  make  a  profit  by  their  sale, 
there  will  be  an  organized  effort  to  attract  boys 
and  workingmen  to  the  saloons  to  spend  their 
wages  for  drink  and  the  development  of  drunk- 
enness and  crime  will  be  the  result.  Eminent 
judges  declare  that  from  three-fourths  to  nine- 
tenths  of  the  crimes  and  misdemeanors  that 
occupy  our  courts  are  the  direct  or  indirect  re- 
sults of  the  traffic  in  intoxicants.  A  recent 
grand  jury,  after  dealing  with  the  winter 
docket  of  crimes,  states  that,  ''the  grand  jury 
feels  it  a  duty  to  state  that  in  many  cases 
brought  before  us,  a  few  drinks  of  liquor  have 
preceded  the  trouble.  The  expenses  of  this 
jury,  of  the  State's  attorneys  and  stenogra- 
phers, together  with  the  great  expense  which 


140         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

must  follow  in  order  to  punish  adequately  the 
men  we  have  indicted,  therefore  apparently 
flow  in  great  measure  from  the  presence  of 
saloons." 

The  Gothenburg  system.  It  is  not  necessary, 
in  order  to  remedy  these  conditions,  to  prevent 
individuals  from  drinking  intoxicating  liquors. 
All  that  is  really  necessary  is  to  sever  the  rela- 
tion which  now  exists  between  the  sale  of  liquor 
and  the  profits  of  the  seller.  The  existing  order 
of  saloons  should  be  abolished,  and  in  their 
stead  a  better  kind  of  saloon  established,  where 
men  could  find  the  social  atmosphere  they  crave 
and  could  buy  liquors,  if  they  chose,  in  moder- 
ate quantities  and  under  stringent  regulations 
calculated  to  prevent  the  possibility  of  intoxica- 
tion; where  the  seller  will  have  no  profit  from 
the  sale  of  liquors,  but  will  make  a  profit  on  the 
sale  of  non-intoxicating  drinks  to  be  sold  in 
great  variety  in  the  same  saloons.  In  this  way 
the  vendor  will  have  every  interest  to  develop 
the  sale  of  temperance  drinks  and  no  interest 
at  all  to  increase  the  sale  of  intoxicants;  in- 
stead there  will  be  a  definite  counter  interest 
resulting  from  the  fact  that  if  men  buy  intoxi- 
cants, the  demand  for  the  temperance  drinks 
on  which  he  makes  a  profit  will  be  to  that  ex- 
tent   diminished.    This    is    substantially    the 


REFORMS   MAKE   CHANGES   IN   THE   LAW       141 

Gothenburg  system  which  has  jDroduced  such 
admirable  results  in  Sweden.  The  state 
should  guarantee  the  purity  of  the  liquors  and 
to  carry  out  the  plan  in  sufficient  perfection 
might  find  it  best  in  the  end  to  take  over  the 
manufacture  of  intoxicants  and  abolish  entirely 
the  private  liquor  business  from  the  manufac- 
ture to  the  sale.  If  such  a  plan  on  thorough 
trial  in  American  cities  should  not  eliminate 
drunkenness  and  the  criminal  effects  that  now 
flow  from  the  consumption  of  intoxicating 
liquors,  more  drastic  measures  would  be  then  in 
order,  even  to  the  complete  abolition  of  the 
manufacture  and  sale  of  intoxicants,  if  that 
were  found  to  be  the  only  means  of  ridding 
society  of  this  prolific  cause  of  crime  and  de- 
basement. 

(36)  Train  the  children  for  the  work  of  life. 
Industrial  education  and  expert  vocational 
counsel.  Our  public  schools  teach  the  common 
English  branches,  but  as  a  rule  give  no  definite 
instruction  in  the  means  of  making  a  good  liv- 
ing. Society  is  very  short-sighted  as  yet  in 
its  attitude  toward  the  development  of  its 
human  resources.  It  trains  its  horses,  as  a 
rule,  better  than  its  men.  It  spends  unlimited 
money  to  perfect  the  inanimate  machinery  of 
production,  but  pays  very  little  attention  to  the 


142  LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

business  of  perfecting  the  human  machinery, 
though  by  far  this  is  the  most  important  factor 
in  production. 

The  great  mass  of  our  children  leave  school 
before  getting  even  a  reasonable  training  in 
the  common  branches  of  an  English  education. 
According  to  the  figures  given  by  the  school 
authorities  a  year  or  two  ago  less  than  1-16  of 
the  children  in  the  Boston  primaries  go  through 
a  High  School  course.  In  Philadelphia  less 
than  1-30  of  the  children  go  through  the  High 
School,  and  in  Washington  less  than  1-13.  Here 
are  the  data  for  these  three  cities.  The  High 
School  figures  include  the  pupils  in  all  schools 
and  courses  of  High  School  grade,  commercial 
and  manual  training,  as  well  as  academic. 

PUPILS  IN   THE  PUBLIC   SCHOOLS. 

Boston        Philadelphia     Wash- 
ington 

First  year  primaries 13,622  33,588  9,198 

First  year  grammar 10,007  19,386  5,061 

Last  year  grammar 4,869  5,710  3,136 

Last  year  high  schools 850  1,089  663 

Nearly  two-thirds  of  the  children  in  Boston 
and  Washington  and  five-sixths  in  Philadelphia 
drop  out  of  school  even  before  they  finish  the 
grammar  grades.  There  are  not  seats  enough 
in  the  grammar  schools  for  much  over  one-third 
to  one-fifth  of  the  children,  nor  seats  in  the 
High  Schools  for  more  than  one-tenth  to  one- 


REFORMS   MAKE   CHANGES   IN    THE   LAW      143 

twentieth.  Our  cities  evidently  do  not  expect 
or  intend  to  educate  the  bulk  of  the  boys  and 
girls  beyond  the  primaries  or  lower  grammar 
grades.  The  mass  of  children  go  to  work  to 
earn  their  living  as  soon  as  they  are  old  enough 
to  meet  the  law,  and  often  before  that. 

Do  not  specialize  too  young.  Science  de- 
clares that  specialization  in  early  years  in  place 
of  all-round  culture  is  disastrous  both  to  the 
individual  and  to  society.  There  is  a  clear 
relation  between  intelligence  and  variety  of 
action  and  experience.  A  knowledge  of  each 
of  the  great  classes  of  industry  by  practical 
contact  is  the  right  of  every  boy.  This  varied 
experience  should  be  obtained  under  a  thorough- 
going, scientific  plan  of  educational  develop- 
ment and  not  by  the  wasteful  and  imperfect 
method  of  drifting  from  one  employment  to  an- 
other in  the  effort  to  make  a  living,  running  an 
elevator  in  one  place,  marking  tags  in  another, 
tending  a  rivet  machine  in  another,  etc.,  etc., 
spending  many  years  of  time  and  energy  in 
narrow  specialization,  and  getting  no  adequate, 
comprehensive  understanding  of  any  business 
or  industry. 

The  union  of  a  broad,  general  culture  with 
an  industrial  education  including  a  practical 
experience  broad  enough  to  form  a  true  founda- 
tion for  specialization  in  the  proper  field,  pos- 


144         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

sesses  an  economic  and  social  value  that  can 
hardly  be  overestimated.  Yet  practically  all 
our  children  are  subjected  to  the  evil  of  un- 
balanced specialization — specialization  that  is 
not  founded  on,  not  accompanied  by  the  broad 
culture  and  experience  that  should  form  its 
basis  and  be  continued  as  coordinate  factors 
in  a  full  development — specialization  that  is  not 
only  unbalanced  and  ill-founded  but  also  in 
many  cases  inherently  narrow,  inefficient  and 
hurtful  in  itself. 

But  learn  to  do  something.  Most  of  the 
children  who  leave  school  early  specialize  on 
narrow  industrial  lines,  and  most  of  them  who 
remain  in  school  specialize  on  book  learning. 
Book  work  should  be  balanced  with  industrial 
education,  and  working  children  should  spend 
part  of  their  time  in  culture  classes  and  in- 
dustrial science.  Society  should  make  it  pos- 
sible for  every  boy  and  girl  to  secure  at  least 
a  High  School  education  and  an  industrial  train- 
ing at  the  same  time.  This  can  be  done  by 
the  establishment  of  Public  Half- Work  High 
Schools,  in  which  boys  and  girls  can  study  half 
of  each  day,  and  support  themselves  by  working 
the  other  half  day  for  the  public  water  works, 
lighting  or  transportation  systems,  street  de- 
partments or  some  other  department  of  the  pub- 
lic service,  or  for  private  employers. 


BEFOEMS   MAKE   CHANGES   IN   THE   LAW      145 

Part  time  schools  are  practical.  A  city  or 
town  can  easily  make  arrangements  with  mer- 
chants, manufacturers  and  other  private  em- 
ployers, whereby  High  School  pupils  may  have 
the  opportunity  to  work  half  time  in  many  lines 
of  industry.  The  Women's  Educational  and 
Industrial  Union  of  Boston  is  already  carrying 
on  this  sort  of  arrangement  with  some  of  the 
leading  merchants  of  the  city,  so  that  the  girls 
in  the  Union's  classes  in  salesmanship  are  able 
to  support  themselves  and  get  most  valuable 
practical  training  by  working  half  time  in  the 
stores.  Enlightened  employers  are  glad  to 
make  such  arrangements,  realizing  the  im- 
portance to  themselves  and  to  the  whole  com- 
munity of  such  advanced  industrial  and  cultural 
training.  Some  of  our  agricultural  colleges 
and  state  universities,  especially  in  the  West, 
afford  opportunities  for  young  men  and  women 
to  earn  their  living  while  getting  a  college 
education.  All  that  is  necessary  is  to  extend 
the  methods  and  principles  already  in  use  to 
the  public  school  system  as  a  whole,  so  that  no 
boy  or  girl  shall  longer  be  debarred  from  the 
training  of  mind  and  hand,  which  is  the  right- 
ful heritage  of  every  child  society  allows  to  be 
born  into  this  complex  and  difficult  world. 

With  proper  provision  for  self-support  by 
half-time  work,  the  law  might  well  require  that 


146         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

school  attendance  should  be  continued  until  six- 
teen or  even  eighteen  in  place  of  the  present  re- 
quirement of  fourteen  years. 

A  variety  of  scientific  trade  schools  and  con- 
tinuation schools  should  also  be  established  on 
the  plan  that  has  done  so  much  for  the  develop- 
ment of  German  industry  in  recent  times, 
whereby  young  people  after  leaving  ordinary 
public  schools  may  continue  their  education, 
general  and  industrial,  by  attending  these 
special  schools  in  the  evening  or  on  part  time. 

Expert  vocational  advice  should  be  provided. 
In  connection  with  the  public  school  system  of 
education  throughout  the  country,  provision 
should  be  made  for  expert  counsel  in  the  choice 
of  a  vocation.  Young  people  should  be  thor- 
oughly tested  and  aided  and  helped  to  come 
to  a  true  understanding  of  their  aptitudes, 
abilities,  interests,  resources  and  limitations, 
and  the  relations  of  these  to  the  conditions  of 
success  in  different  industries,  substantially  on 
the  lines  adopted  by  the  Vocation  Bureau  es- 
tablished by  Mrs.  Quincy  A.  Shaw  in  connection 
with  the  Civic  Service  House  in  Boston  on 
plans  drawn  up  by  the  present  writer  at  the 
beginning  of  1908. 

An  account  of  the  Bureau  and  its  methods 
and  results  may  be  found  in  the  Arena  for  June, 
July  and  August  of  this  same  year. 


EEFOKMS   MAKE   CHANGES   IN   THE   LAW       147 

(37)    Civic  training  in  the  public  schools. 

Education  for  citizenship.  The  School  City,  or 
student  self-government,  should  be  established 
in  connection  with  all  public  schools  as  one  of 
the  most  important  means  for  the  development 
of  character,  civic  interest,  and  habits  of  good 
citizenship  in  the  plastic  years  of  youth  before 
the  money  motive  has  come  to  warp  the  judg- 
ment and  the  conscience. 

Still  more  emphatic  is  the  duty  of  improving 
our  general  system  of  education. 

(1)  By  providing  for  thorough  and  scientific 
moral  training,  both  by  precept  and  practice, 
from  the  primary  up  through  the  High  School 
and  the  university.  Care,  thoroughness,  relia- 
bility, energy,  enthusiasm,  courtesy,  helpfulness, 
cooperation,  sympathy,  kindliness,  the  sense  of 
justice,  etc.,  can  be  developed  by  exercise,  just 
as  the  muscles  and  mental  faculties  are  ex- 
panded and  strengthened  by  exercise,  and  such 
development  should  be  made  a  prime  object  of 
our  educational  system. 

(2)  The  laws  of  health  should  be  drilled 
into  the  children  so  persistently  and  effectively 
that,  in  addition  to  a  clear  understanding  of 
those  laws,  obedience  to  them  shall  become 
habitual,  and  daily  living  in  full  accord  with 
the  laws  of  physical  well-being  shall  become  the 
natural  order  of  society. 


148         LEGAL   DOCTRINE   AND   SOCIAL  PROGRESS 

(3)  Full  instruction  should  be  given  in  the 
public  schools  in  regard  to  the  relations  of  the 
sexes  so  that  boys  and  girls  may  come  to  a 
knowledge  of  this  vital  subject  from  the  moral 
and  scientific  side  instead  of  getting  their  in- 
formation from  polluted  and  secret  sources  as 
they  do  for  the  most  part  now.  The  conditions 
of  true  marriage  and  the  best  methods  of  child 
culture  should  also  be  taught  together  with 
ideals  of  conduct  that  will  cause  defectives  to 
refrain  from  multiplying  their  kind,  and  lead 
to  the  breeding  of  each  generation  from  the 
best  of  the  preceding  generation  instead  of 
from  the  lower  strata  chiefly  as  is  the  case  at 
present.  A  satisfactory  record  of  proficiency 
in  such  courses  of  instruction,  and  a  thorough 
working  knowledge  of  the  principles  involved, 
might  well  be  made  the  conditions  precedent  to 
the  issue  of  a  marriage  license. 

(4)  The  methods  of  general  culture  should 
be  materially  modified  if  we  are  to  give  our 
boys  and  girls  an  adequate  preparation  for 
life  and  work  instead  of  a  preparation  for  pass- 
ing an  examination  to  get  a  degree.  We  should 
train  for  ability  and  character  rather  than  for 
examinations.  And  the  principal  test  should 
be  the  successful  performance  of  things  that 
have  to  be  done  in  daily  life  rather  than  the 
answering  of  a  series  of  questions  about  a  book 


REFORMS   MAKE    CHANGES   IN   THE   LAW      149 

or  lecture  course.  Systematic  and  scientific 
training  of  body  and  brain,  of  memory,  reason, 
imagination,  inventiveness,  care,  thoroughness, 
truth,  promptitude,  reliability,  sympathy,  kind- 
liness, persistent  industry,  etc.,  etc.,  is  what  we 
need.  Education  for  power  with  actual  per- 
formance and  useful  work  should  be  the  funda- 
mental test.  Power  in  any  direction  comes 
from  exercise  or  activity  in  that  direction  to- 
gether with  sufficient  development  in  other  di- 
rections to  give  symmetry  and  balance  to  the 
whole.  Even  the  power  of  sympathy  and  the 
sense  of  justice  can  be  developed  by  daily  ex- 
ercise on  the  same  principle  that  we  develop 
the  biceps  or  the  bicycle  muscles.  Knowledge 
is  excellent  but  a  man  with  knowledge  only, 
without  the  power  of  original  thought  and  the 
ability  to  put  his  ideas  into  effective  execution 
is  little  better  than  a  book, — he  contains  a  rec- 
ord of  facts  but  cannot  build  or  execute.  He 
may  not  be  even  up  to  the  book  standard  of 
life  if  he  has  not  learned  to  express  and  impart 
his  knowledge.  That  is  why  college  graduates, 
even  those  who  stood  high  in  their  classes,  often 
fail  to  make  good  in  business.  They  are  good 
bookworms,  sponges,  absorbing  machines,  but 
they  do  not  know  how  to  do  things,  and  have 
no  taste  for  doing  things.  They  are  really  un- 
fitted by  their  habits  of  passive  absorption  for 


150         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

the  active  life  of  the  business  world.  "We  must 
train  our  students  to  full  powers  of  action,  not 
only  in  football  and  other  athletic  sports,  but 
in  the  various  lines  of  useful  work  so  far  as 
possible  according  to  their  aptitudes  as  brought 
out  by  scientific  tests  and  varied  experience. 
And  we  must  give  our  working  boys  the  power 
of  thought  and  of  verbal  expression  that  come 
with  general  culture.  And  we  must  do  all  this 
in  the  formative  period  before  the  progressive 
hardening  of  the  system  has  taken  the  bloom 
from  development  and  modifiability. 

The  state  should  prepare  every  child  for  a 
useful  life.  Youth  is  the  period  of  plasticity 
and  rapid  development  in  which  the  founda- 
tions should  be  laid  for  an  all-round  cul- 
ture, character  development,  and  special  voca- 
tional power.  In  the  schools  we  have  the  next 
generation  plastic  in  our  hands  ready  to  be 
molded  to  any  form  we  please.  The  fluidity  of 
youth  is  shown  in  the  fact  that  practically 
75%  of  the  infant's  body  is  water,  while 
only  58.5%  of  the  adult's  body  is  liquid. 
Though  some  degree  of  plasticity  may  be  re- 
tained to  the  end,  the  more  fundamental  char- 
acteristics of  a  man  are  generally  fixed  at 
twenty-five  and  the  mental  at  thirty-five  to 
forty  years.  If  you  were  molding  a  statue  in 
plaster  you  would  not  think  it  wise  to  neglect 


EEFORMS   MAKE   CHANGES   IN   THE   LAW       151 

the  work  or  let  it  drag  along  half  done  till  the 
plastic  mass  had  stiffened  into  rigidity.  It  is 
just  as  unwise  to  neglect  the  opportunities  af- 
forded by  the  plasticity  of  youth.  A  year  of 
the  period  from  fifteen  to  twenty-five  is  worth 
more  than  two  years  after  thirty-five  for 
formative  purposes  and  the  development  of 
power.  In  this  plastic  period  of  rapid  growth, 
this  age  of  brain  and  heart,  society  should 
guarantee  every  child  a  thorough  all-round  de- 
velopment of  body,  mind  and  character,  and  a 
careful  planning  of  and  adequate  preparation 
for  some  occupation,  for  which,  in  the  light  of 
scientific  testing  and  experiment,  the  youth 
seems  best  adapted,  or  as  well  adapted  as  to 
any  other  calling  which  is  reasonably  available. 
If  this  vital  period  is  allowed  to  pass  without 
the  broad  development  and  special  training 
that  belong  to  it,  no  amount  of  education  in 
after  years  can  ever  redeem  the  loss.  Not  till 
society  wakes  up  to  its  responsibilities  and  its 
privileges  in  this  relation  shall  we  be  able  to 
harvest  more  than  a  fraction  of  our  human  re- 
sources, or  develop  and  utilize  the  genius  and 
ability  that  are  latent  in  each  new  generation. 


VIII 

CERTAIN    CHANGES    ARE    NEEDED    NOW    IN    OUR    SYS- 
TEM   OF    LEGAL   PRACTICE 

Among  the  progressive  measures  that  are 
pressing  for  adoption  are  several  that  affect 
the  form  and  methods  of  the  law  as  a  system 
of  jurisprudence. 

(1)  One  action  for  all  rights.  The  law 
should  provide  in  all  our  states  that  the  plain- 
tiff should  secure  in  a  single  action  all  his 
rights  in  relation  to  the  cause  at  suit. 

(2)  Technicalities  should  be  minimized. 
No  suit  should  be  allowed  to  fail  for  lack  of 
form.  Technicalities  should  be  eliminated 
from  our  system  of  jurisprudence  so  far  as 
possible,  and  direct  decision  on  the  merits  of 
the  case,  free  from  all  technicalities  of  every 
class,  should  be  the  rule  in  all  our  courts. 

(3)  Simplify  the  law.  Simplification  and 
unification  of  the  law  is  of  very  great  impor- 
tance. It  is  absurd  beyond  expression  that  the 
laws  of  our  various  states  should  differ  in  re- 
gard to  what  constitutes  a  valid  marriage  or 
sufficient  ground  of  divorce,  the  rights  of  hus- 
band and  wife,  the  descent  of  property,  the 
methods  of  making  a  valid  contract,  etc. 

152 


CERTAIN   FAULTS   IN   LEGAL   METHOD  153 

Codification  has  been  proposed  as  a  remedy 
for  the  complexity  and  incoherence  of  our  com- 
mon law,  but  there  is  reason  to  believe  the  rem- 
edy far  worse  than  the  disease.  Codification 
takes  the  life  from  the  law.  It  gives  you  canned 
law  instead  of  fresh  fruit  picked  day  by  day 
from  the  living  tree.  To  attempt  to  reduce  the 
principles  of  the  common  law  to  any  stated 
form  of  words  is  to  destroy  the  very  essence 
of  the  common  law  and  establish  an  inert  rigid- 
ity in  place  of  the  vital  flexibility  and  adapta- 
bility that  constitute  the  great  superiority  of 
our  common  law.  Our  statute  law  is  univer- 
sally regarded  as  inferior  to  the  common  law 
for  the  very  reason  that  no  legislator  can  fore- 
see and  provide  for  all  the  contingencies  of 
future  cases,  whereas  the  common  law,  untram- 
meled  by  set  phrases  and  inflexible  provisions, 
freely  applies  the  principles  of  justice  and  com- 
mon sense  to  all  the  facts  and  circumstances  of 
each  new  case  as  it  arises. 

The  true  path  to  the  simplification  and  uni- 
fication of  the  law  lies  through  conventions  of 
judges  and  statesmen,  who  will  bring  together 
the  laws  of  their  states,  and  try  to  harmonize 
and  simplify  them  by  agreeing,  not  on  any  set 
phrases  or  fixed  provisions,  but  on  the  prin- 
ciples to  be  followed  in  administering  the  com- 
mon law  in  all  the  states. 


154         LEGAL   DOCTEINE   AND   SOCIAL  PEOGEESS 

For  statute  law  a  similar  plan  might  be 
adopted,  but  definite  phrasing  might  be  at- 
tempted in  this  case,  since  codification  may  well 
be  applied  to  statute  law,  though  destructive  to 
the  most  valuable  characteristics  of  the  com- 
mon law. 

(4)  Revise  law  of  evidence  to  facilitate  jus- 
tice. The  law  of  evidence  should  be  revised  in 
order  to  eliminate  the  rules  which  tend  to  de- 
lay and  defeat  justice  rather  than  aid  its 
administration.  A  scientist  making  an  investi- 
gation would  not  hamper  himself  with  technical 
rules  nor  with  any  limitations  beyond  those 
involved  in  a  scientific  effort  to  secure  evidence 
relative  to  the  subject  in  hand,  and  he  would 
give  each  part  of  the  proof  its  due  weight  in 
the  formation  of  his  conclusions.  It  is  not  pos- 
sible in  a  court  of  law  to  follow  entirely  the 
broad  and  simple  methods  of  scientific  investi- 
gation, but  it  is  possible  to  come  much  closer 
to  that  ideal  than  is  the  practice  to-day,  aside 
from  the  examinations  made  by  the  Masters  in 
Chancery  which  approach  quite  closely  to  the 
scientific  method.  Jury  trials  at  law  are 
hedged  about  with  numerous  limitations  which 
often  cause  unnecessary  waste  of  time  and 
money  in  the  trial  of  cases  and  not  infrequently 
produce  a  miscarriage  of  justice.    The  very 


CERTAIN   FAULTS   IN   LEGAL   METHOD  155 

multiplicity  of  the  rules  of  evidence  opens  the 
way  for  cunning  lawyers  to  raise  doubts  and 
disputes  and  take  appeals,  to  the  great  increase 
in  the  cost  and  difficulty  of  legal  proceedings. 
In  the  Standard  Oil  trial  before  Judge  Landis, 
for  example,  the  Oil  Trust  lawyers  took  169  ex- 
ceptions. In  some  of  the  famous  murder  cases 
hundreds  of  exceptions  have  been  taken  to  the 
rules  of  the  trial  court.  In  this  mass  of  ex- 
ceptions, taken  in  the  course  of  long  and  com- 
plex trials  the  Appellate  Court  is  very  apt  to 
find  some  departure  from  the  rules  of  law  in 
respect  to  the  admission  or  exclusion  of  evi- 
dence, on  which  a  new  trial  may  be  ordered, 
justice  delayed  and  perhaps  finally  thwarted. 
The  rules  of  evidence  should  be  so  broadened 
and  simplified  that  technical  objections  and 
masses  of  exceptions  will  become  a  practical  im- 
possibility. 

(5)  Provide  for  intelligence  in  jurors.  The  ' 
Jury  System,  though  perhaps  the  best  method 
that  can  be  devised  for  keeping  the  fountains 
of  justice  free  from  the  bane  of  class  prejudice 
and  professional  bias,  is  nevertheless  far  from 
satisfactory  in  its  present  form.  A  great  im- 
provement might  result  from  an  educational 
qualification  for  jury  service.  Certainly  no 
man  who  has  not  at  least  a  High  School  educa- 


156         LEGAL   DOCTEINE   AND   SOCIAL   PROGKESS 

tion  or  its  equivalent,  as  well  as  a  character 
above  reproach,  is  fit  to  sit  in  judgment  on  his 
fellow  men. 

The  method  of  drawing  jurors  might  also  be 
improved.  Perhaps  it  might  be  a  good  plan  to 
have  the  judges  draw  up  the  lists  for  jury- 
service  and  then  subject  such  lists  to  the  Grand 
Jury  for  approval. 

(6)  Give  better  treatment  to  witnesses. 
Provision  should  be  made  for  the  better  treat- 
ment of  witnesses,  especially  in  criminal  cases. 
It  is  a  gross  injustice  that  innocent  persons 
should  be  subjected  to  imprisonment  in  the 
common  jails  simply  because  they  happen  to  be 
important  witnesses  in  future  trials.  The 
story  called  "The  Silent  Witness"  in  McClure's 
for  January,  1896,  contains  a  vivid  illustration 
of  what  may  happen  to  a  witness  under  our 
present  law.  A  young  man  from  the  country 
was  passing  the  door  of  a  saloon  in  New  York, 
when  a  crowd  of  men  came  pouring  out,  sur- 
rounding two  men  who  were  fighting.  As  they 
reached  the  pavement,  one  of  these  men  drew 
his  revolver  and  shot  the  other.  The  crowd 
scattered.  The  countryman,  seeing  the  crim- 
inal about  to  escape,  grasped  and  held  him  until 
the  police  arrived.  They  not  only  arrested  the 
murderer,  but  took  the  countryman  into  cus- 
tody also  as  the  only  obtainable  witness  of  the 


CERTAIN   FAULTS   IN   LEGAL   METHOD  157 

crime.  He  was  put  in  jail  and  kept  there  in 
order  to  make  sure  of  his  appearance  at  the 
trial,  and  during  the  long  months  before  the 
case  came  into  court,  the  disgrace  and  confine- 
ment so  wore  upon  him  that  when  at  last  the 
trial  came  on,  it  was  found  that  the  witness  had 
died  in  prison.  This  is  an  extreme  case,  of 
course,  but  it  forcibly  illustrates  the  deep  in- 
justice of  any  system  of  laws  which  will  permit 
the  imprisonment  of  innocent  persons  who  may 
be  wanted  as  witnesses  in  the  state's  behalf. 

If  a  witness  cannot  be  trusted  to  appear  when 
a  case  comes  on  for  trial,  it  might  be  right  to 
shadow  him  with  a  detective  in  order  to  be  sure 
that  he  stays  within  reach  of  the  court.  If  a 
witness  fails  to  appear  when  ordered  by  the 
court  to  do  so,  it  is  proper  then  to  subject  him 
to  imprisonment  as  punishment  for  his  con- 
tempt. But  to  deprive  a  witness  of  his  liberty, 
and  keep  him  for  weeks  and  months  together 
from  attending  to  his  business  without  any  re- 
muneration for  his  loss  of  time  and  liberty  or 
the  ignominy  of  imprisonment  is  clearly  a 
crime  committed  in  the  name  of  the  law. 

(7)  Redress  for  false  accusation.  Reason- 
able redress  should  be  insured  by  the  law  to 
persons  falsely  accused.  In  civil  cases  an  ac- 
tion lies  for  damages  for  malicious  prosecution, 
but  in  criminal  cases  the  state  may  prosecute 


158         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

the    wrong    person,   hold   him   in   prison    for 
months  or  even  years,  destroy  his  income,  ruin 
his  business  and  cover  his  name  with  ignominy, 
and  the  man  has  no  redress.    This  is  an  out- 
rage of  which  no  legal  system  should  be  guilty. 
(8)     Expense  and  delays  in  securing  justice 
should  be  abolished.    Free  and  speedy  justice 
should    be    ensured    to    every    citizen.    Many 
times  the  cost  of  litigation  compels  an  injured 
party  to  endure  the  wrong  rather  than  incur 
the  loss  and  inconvenience  involved  in  prosecu- 
tion.    Cases   are  on  record  where  men  have 
spent  fortunes  in  trying  to  protect  their  rights 
in  the  courts,  and  through  numerous  appeals 
and  long  delays  and  the  excessive  cost  of  legal 
proceedings    have    been    compelled    at    last, 
through  the  exhaustion  of  their  resources,  to 
abandon  the  effort  to  protect  their  rights,  los- 
ing in  the  legal  battle  both  their  fortunes  and 
the  rights  they  sought  to  protect.     Such,  for 
example,  was  the  experience  of  the  man  who 
discovered   the  new  process   for   refining  oil. 
The  Oil  Trust  people  stole  his  invention  and 
fought  him  through  court  after  court  until  his 
means  were   all   exhausted   and  he  lost  both 
property    and    invention.     The   man   who    in- 
vented the  railroad  spike,  it  is  said,  was  worth 
$50,000.     But  the  railroads  used  his  invention 
without  acknowledgment.    He  prosecuted  them. 


CERTAIN   FAULTS   IN   LEGAL   METHOD  159 

They  fought  the  suits  through  court  after  court 
until  his  money  was  gone  and  justice  beyond  his 
reach.  Such  a  system  makes  the  attainment  of 
justice,  in  many  cases,  a  matter  of  combat  little 
better  than  the  methods  by  which  our  barbarian 
ancestors  settled  their  disputes;  the  difference 
being  simply  that  they  fought  outdoors  with 
their  swords,  while  we  fight  in  the  courts  with 
purses.  If  the  state  is  to  protect  the  rights  of 
its  citizens,  it  must  see  to  it  that  the  administra- 
tion of  the  law  is  made  so  swift  and  sure  and 
costless  to  the  plaintiff  who  has  a  well-grounded 
case,  that  the  resort  to  the  courts  for  legal  re- 
dress may  cease  to  be  a  greater  evil  than  suffer- 
ing the  injury  which  forms  the  subject  of  com- 
plaint. 


IX 


ESSENTIAL  PRINCIPLES  TO  WHICH  THE  LAW  SHOULD 
ALWAYS   CONFORM 

The  fundamental  problem  of  law  and  govern- 
ment. All  the  measures  we  have  mentioned, 
from  the  improvement  of  the  criminal  law  to 
the  right  to  work  are  phases  of  the  fundamental 
problem  of  law  and  government,  viz. :  the  estab- 
lishment of  the  best  conditions  for  the  develop- 
ment of  higher  types  and  the  fostering  of  in- 
stitutions in  which  such  higher  types  find  their 
natural  expression  and  means  of  action.  Man 
and  the  law  are  both  results  of  the  action  of 
great  natural  and  social  forces,  that  have 
brought  them  both  from  barbarism  to  civiliza- 
tion, and  will  carry  them  on  to  still  higher 
levels,  not  perhaps  to  a  condition  worthy  to  be 
called  ideal,  but  certainly  much  nearer  to  it 
than  we  are  at  present.  While  we  cannot  ex- 
pect to  reach  the  ideal  we  can  earnestly  move 
in  that  direction  with  the  purpose  of  approach- 
ing it  as  closely  as  may  be  practicable.  The 
basic  method  in  such  approach  is  the  elimina- 
tion of  anti-social  motives  and  habits,  and  the 
development  of  social  motives  and  habits. 

160 


PRINCIPLES   THE   LAW   SHOULD   FOLLOW         161 

An  ideal  not  yet  reached.  In  the  ideal  state, 
desires  which  cannot  be  satisfied  without  in- 
fringement of  the  rights  of  others,  would  be 
reduced  to  a  minimum,  and  the  essential  ego- 
istic impulses  still  remaining  would  be  guided 
and  governed  by  an  altruistic  will,  a  will  in 
tune  with  the  public  good,  and  representing 
social  thoughts,  principles,  motives  and  habits 
trained  into  the  very  nature  of  the  child  by 
precept  and  practice  throughout  the  period  of 
its  education  from  the  cradle  to  the  end  of 
school  and  aided  and  developed  in  after  life  by 
the  influence  of  cooperative  industry  and  a  po- 
litical co-partnership  existing  not  in  name  alone, 
but  in  full  realization  of  the  principles  of  de- 
mocracy and  the  spirit  of  brotherhood. 

The  way  to  reach  the  ideal  state — Individ- 
uals must  progress  in  advance  of  institutions. 
The  path  to  the  ideal  society  lies  through  the 
improvement  of  individuals.  Perfection  in  the 
social  organism  is  a  question  of  cellular  devel- 
opment. If  all  the  cells  are  perfect,  they  will 
group  themselves  in  perfect  forms,  assume  true 
relations,  and  the  whole  will  be  perfect.  If 
any  cell  is  crushed  by  injustice,  cramped  by  ig- 
norance, starved  by  poverty,  deformed  by  vice, 
corrupted  by  luxury  or  poisoned  with  selfish- 
ness— if  any  cell  is  imperfect  in  any  degree, 
the  whole  falls  short  of  perfection  by  the  de- 


162         LEGAL   DOCTRINE   AND   SOCIAL   PEOGBESS 

fects  of  the  faulty  cell,  and  the  false  relations 
resulting  therefrom.  The  development  of  good 
and  repression  of  evil  in  individual  men  and 
women  is  the  fundamental  process.  Especially 
is  education  of  the  children,  the  fresh  and  plas- 
tic cells,  a  mighty  power  for  the  reorganization 
of  society.  Institutions  mold  mankind,  but 
institutions  are  themselves  the  product  of  in- 
dividual thought  and  feeling.  A  man  of  clear 
perception  and  keen  appreciation  of  the  right, 
raises  his  voice  against  a  grievous  wrong,  and 
points  perhaps  to  the  remedy.  Some  of  his 
hearers  are  stirred  to  truer  thought  and  have 
their  emotions  directed  and  deepened.  They 
in  their  turn  modify  the  minds  and  hearts  of 
the  people  they  meet.  Opposition  to  the  wrong 
increases  thus  until  it  becomes  Public  Senti- 
ment. Then  laws  and  institutions  are  changed, 
and  the  wrong  vanquished.  The  new  institu- 
tions bring  the  lingering  minority  of  mankind 
into  harmony  with  the  new  advance,  and  mold 
the  natures  of  all  into  more  perfect  fitness  for 
further  progress.  Thus  institutions  and  stat- 
utes are  merely  a  part  of  the  means  by  which 
individual  improvement  achieves  further  indi- 
vidual improvement.  Perfect  manhood  the 
object — ennobled  manhood  the  means.  No 
wise  man  will  lose  a  chance  of  deepening  and 
correcting  his  ideas   of  social  questions, — or 


PRINCIPLES   THE   LAW   SHOULD   FOLLOW         163 

neglect  an  opportunity  of  modestly  impressing 
his  thought  and  feelings  upon  others,  or  receiv- 
ing their  views  for  his  enlightenment.  Every 
brain  he  sets  to  thinking,  every  heart  he  sets  in 
motion  in  behalf  of  those  who  dwell  beneath 
the  shades  of  Poverty,  Injustice,  Vice  or  Some- 
thing-That-Ought-Not-to-Be,  is  an  item  in  the 
column  whose  addition  makes  up  "Public  Senti- 
ment," "Law,"  "New  Institutions."  The 
transformation  of  ages  may  flow  from  the  heart 
of  a  child,  and  the  humblest  student  of  social 
science  may  drop  some  word,  that,  taking  root, 
in  the  brain  of  a  man  who  trundles  the  world 
at  his  heels,  will  lift  humanity  into  a  new  and 
higher  type  of  civilization. 

Good  and  evil  mixed  in  every  man.  The  de- 
velopment of  good  and  the  suppression  of  evil 
is  the  prime  business  of  the  law.  If  evil  were 
found  in  a  state  of  absolute  purity,  like  Eoyal 
baking  powder,  it  would  be  easy  to  annihilate 
it  at  once.  But,  unfortunately,  good  and  evil 
are  not  chemically  pure,  but  are  mixed  in  the 
nature  of  every  man,  and  there  is  no  way  to 
repress  the  evil  but  to  put  pressure  or  limita- 
tion on  the  man  who  manifests  it,  so  that  it  is 
impossible  to  oppose  evil  without  to  some  ex- 
tent hindering  the  activity  of  the  good  qualities 
bound  up  with  the  bad  ones  in  the  person  whose 
freedom  is  limited. 


164         LEGAL   DOCTRINE   AND   SOCIAL   PEOGEESS 

This  leads  to  two  considerations  of  great 
moment,  as  reducing  to  a  minimum  the  incon- 
venience resulting  from  this  union  of  good  and 
evil  in  every  person — the  selective  effect  of  in- 
telligence and  the  separative  and  progressive 
power  of  proportionality. 

The  need  of  selective  intelligence.  Eepres- 
sion  and  encouragement  are  of  two  sorts — one 
of  which  acts  upon  the  intelligence  of  the  per- 
son operated  upon,  while  the  other  acts  inde- 
pendently of,  or  aside  from  his  intelligence.  If 
a  boy  is  whipped  for  making  faces  at  his  aunt, 
the  shingling  does,  for  the  time  being,  repress 
his  smiles,  as  well  as  the  forbidden  grimace, 
but,  as  to  the  future,  the  whipping  has  no  tend- 
ency to  diminish  his  laughter,  but  only  his  im- 
pudence, for  the  youth  knows  the  purpose  of 
his  punishment, — through  the  medium  of  his 
intelligence,  bad  action  is  separated  from  good, 
and  the  repression  applied  to  the  former, — that 
is,  the  trans-intellectual  effect  of  punishment  is 
selective. 

The  extra-intellectual  effect,  including  the 
deterioration  of  physical  and  mental  powers 
owing  to  imprisonment,  disease,  remorse,  or 
other  repression  following  vile  action,  falls  to 
some  extent  on  the  good  qualities  of  the  actor, 
— the  total  power  of  his  life  is  diminished. 


PEINCIPLES   THE   LAW    SHOULD   FOLLOW  165 

But  the  repression  may,  by  its  trans-intellectual 
power,  stop  up  the  channels  into  which  a  por- 
tion of  his  life  current  was  pouring,  thereby 
turning  the  stream  more  completely  in  the  di- 
rection of  good,  so  that  although  his  total  power 
is  decreased  by  the  bodily  and  mental  effects 
of  his  punishment,  yet  so  much  larger  a  per- 
centage of  his  vigor  goes  to  good  than  was 
formerly  the  case,  that  his  beneficial  activities 
are  absolutely,  as  well  as  relatively,  larger  than 
before. 

The  principle  of  proportionality.  Turning 
now  to  the  second  consideration  above  men- 
tioned, the  principle  of  proportionality  is  of 
vital  moment.  It  is  the  core  of  equity,  the 
heart  of  justice.  It  is  clear  that  the  amount  of 
encouragement  or  repression  in  each  case  must 
not  be  arbitrary,  or  uniform,  but  must  be  pro- 
portioned to  the  degree  of  good  or  evil  in  the 
action  or  promise  in  question,  for  if  repression 
is  not  duly  proportioned, — if  the  same  punish- 
ment is  meted  out,  and  the  same  consequences 
accrue,  to  two  men  of  different  degrees  of  guilt, 
there  is  no  reason  for  the  better  to  be  so.  If 
he  is  to  incur  the  punishment  any  way,  he  may 
as  well  sin  up  to  it,  so  far  as  that  influence  is 
concerned.  As  the  old  proverb  has  it,  "One 
may  as  well  be  hung  for  a  sheep  as  a  lamb.,, 


166         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

If,  for  example,  theft  and  murder  were  pun- 
ished with  equal  severity,  a  robber,  seeing  that 
his  danger  is  the  same  if  he  is  convicted  of 
theft,  as  if  he  were  guilty  of  murder,  will  natu- 
rally be  incited,  in  many  cases,  to  kill  the  per- 
son whom  otherwise  he  would  only  have  robbed ; 
since,  if  the  penalty  is  the  same,  there  is  more 
security  and  less  danger  of  discovery,  when  he 
that  can  best  make  the  discovery  is  put  out  of 
the  way. 

Is  essential  to  justice.  The  element  of  pro- 
portion, so  essential  to  the  idea  of  justice,  is 
tacitly  recognized  in  every  criminal  code  of  the 
world,1  by  the  graduation  of  offenses  and  pun- 

i  There  is  one  notable  exception  in  history, — an  exception 
that  most  strongly  emphasizes  the  necessity  of  proportion.  In 
the  year  624  B.C.,  Draco  was  appointed  to  draw  up  a  code  of 
laws  for  Athens.  He  provided  the  same  penalty, — death, — 
for  every  offense — the  slightest  theft  or  even  laziness,  as  well 
as  murder  or  treason.  Such  laws  were  too  cruel  to  be  en- 
forced. "  Sentiments  of  humanity  in  the  judges,  compassion 
for  the  accused  when  his  fault  was  not  equal  to  his  suffering, 
the  unwillingness  of  witnesses  to  exact  too  cruel  an  atone- 
ment, their  fears  also  of  the  resentment  of  the  people — all 
these  conspired  to  render  the  laws  obsolete  before  they  could 
well  be  put  into  execution.  Thus  they  counteracted  their 
own  purpose,  and  their  excessive  rigor  paved  the  way  for  the 
most  dangerous  impunity."  Grimshaw,  p.  23.  These  intol- 
erable laws  remained  in  force  until  694  B.C.,  when  Solon  re- 
pealed them  all  (retaining  the  death-penalty  for  murder 
only),  and  established  a  criminal  code  in  which  punishments 
were  graduated  to  the  various  degrees  of  offense.  On  this 
whole  subject,  see  Geote's  Greece,  chaps.  10,  11. 


PRINCIPLES   THE   LAW   SHOULD   FOLLOW  167 

ishments;  the  principles  being  applied  with  a 
skill  determined  by  the  knowledge  and  charac- 
ter of  the  legislator. 

Permeates  the  whole  law.  The  same  princi- 
ple permeates  the  civil  law  of  every  nation. 
Each  is  to  receive  payment  in  proportion  to 
what  he  has  given,  or  the  service  he  has  ren- 
dered,— that  is  the  meaning  of  quantum  valebat 
and  quantum  meruit.  Each  is  to  pay  in  pro- 
portion to  the  damage  he  has  caused, — that  is 
the  law  of  torts.  Each  is  to  bear  such  part  of 
an  innocent  loss  as  corresponds  to  his  share  of 
the  interest  at  risk, — that  is  the  law  of  general 
average,  distribution  among  creditors  in  cases 
of  insolvency,  contribution  among  insurers  and 
co-contractors,  and  sureties  of  all  kinds,  abate- 
ment of  legacies  when  the  assets  are  deficient, 
etc.,  etc.  The  popular  maxim  "Equality  is 
Equity,"2  means,  not  numerical  equality,  but 

2  That  equality  as  to  burdens,  services,  etc.,  means  propor- 
tionality as  to  individuals  may  be  seen  with  the  utmost 
clearness  by  an  example.  Suppose  A  to  have  rendered  three 
times  the  service  that  B  has.  The  law  of  equality  between 
service  and  reward  will  give  to  A  three  times  as  much  re- 
ward as  B  receives.  B's  service  is  1,  and  his  reward  1. 
A's  service  is  3,  and  his  reward  3. 

B's  reward  is  not  equal  to  A's,  but  bears  the  same  pro- 
portion to  A's  reward  that  B's  service  bears  to  A's  service. 
"Equality  is  Equity,"  does  not  mean  numerical  equality, 
except  between  those  who  are  really  equal  in  respect  to  the 
essential  circumstances  to  which  the  maxim  applies,  or  who 


168         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

equality  of  burden  to  benefit,  reward  to  service, 
punishment  to  fault,  damage  to  loss  caused, 
contribution  to  interest,  etc.,  etc.,  which,  applied 
to  individuals  means  that  each  is  to  be  burdened 
in  proportion  to  benefit,  rewarded  in  propor- 
tion to  service,  punished  in  proportion  to  fault, 
required  to  pay  damages,  in  proportion  to  loss 
caused  by  his  detrimental  conduct,  and  to  con- 
tribute to  a  common  enterprise  in  proportion 
to  his  interest  in  it. 

Limits  the  taxing  power,  and  even  the  leg- 
islature. One  of  the  readiest  illustrations  of 
this  principle  is  the  limitation  of  the  taxing 
power.  Our  courts  declare  that  it  is  of  the 
essence  of  justice  that  a  common  burden  shall 
be  sustained  by  a  common  contribution.3  An 
apportionment  of  the  tax  among  all  those  in- 
terested in  the  purpose  for  which  the  fund  is 
to  be  expended,  is  a  necessary  element  in  all 
taxation,  and  any  attempt  at  the  exercise  of 
the  taxing  power  by  the  legislature,  without 
such  apportionment  is  absolutely  void,  even 
without  any  express  provision  in  the  constitu- 
tion. For  such  legislation  would  be  a  viola- 
tion of  the  implied  limitations  upon  the  govern- 
ment that  grow  out  of  the  very  nature  of  free 

come  within  the  principle  of  the  next  section.     See   Story's 
Jur.,  p.  558. 

3  See  Blackwell  on  Tax  Titles,  Parsons'  Edition,  p.  24. 


PRINCIPLES   THE   LAW   SHOULD   FOLLOW  169 

institutions, — would  be  beyond  the  authority 
which  the  people  have  delegated  to  the  legis- 
lature.4 For  instance,  a  tax  levied  exclusively 
on  real  estate,  for  a  purpose  in  which  the  own- 
ers of  personal  property  are  also  interested,  is 
beyond  the  power  of  the  legislature.5  So  is  a 
tax  on  County  A  for  the  common  benefit  of  that 
and  another  county  not  taxed.6  Neither  is 
it  any  more  proper  to  levy  a  tax  on  a  wide 
district  for  the  benefit  of  a  portion  of  it. 
Taxes  raised  by  a  city  partly  in  each  of  two 
counties,  cannot  be  voted  toward  the  court- 
house of  one  of  the  counties.7  The  legislature 
cannot  set  aside  any  race  as  special  objects  of 
taxation.8  If  it  is  clear  that  the  legislature 
has  imposed  a  tax  on  a  class,  or  on  a  district, 
without  regard  to  the  proportion  of  burden  to 
benefit,  the  courts  will  not  sustain  it.  It  can- 
not select  classes  or  districts  for  manifestly  ex- 
ceptional burdens.9  Among  those  within  the 
proper  field  of  the  tax,  the  maxim  "Equality  is 

4  See  p.  35,  20  Wallace,  655;  18  Mich.  495;  Sedgwick  on 
Statutory  and  Consti.  Construction,  p.  177;  2  Ken't  Com. 
331;  Blackwell  on  Tax  Titles,  Parsons'  Ed.,  24,  35;  Cooley 
on  Taxation,  pp.  2,   140. 

s  Gilman  v.  Sheboygan,  2  Black,  U.  S.  510. 

6  See  decision  of  Sharswood,  J.,  in  Hammett  v.  Phila.,  65 
Pa.  St.  151;  also  64  Ala.  266,  and  9  Minn.  293. 

i  Blackwell,  54 ;  Bergen  v.  Clarkson,  6  N.  J.  352. 

s  Lin  Sing  v.  Washburn,  20  Cal.  534. 

»  Blackwell,  53;  12  Allen,  223,  237;  65  Pa.  St.  146,  151. 


170         LEGAL   DOCTRINE   AND   SOCIAL  PROGRESS 

Equity"  means  Equality  of  sacrifice  or  taxa- 
tion in  proportion  to  ability  to  bear  it.10  The 
taxing  power  is  one  of  the  best  illustrations  of 
the  mighty  hold  that  the  principle  of  propor- 
tionality has  upon  our  law, — it  is  indeed  as  we 
have  previously  pointed  out,  the  very  soul  of 
justice, — and  so  deeply  reverenced  by  our 
judges  that  they  do  not  hesitate  to  declare  that 
it  is  embodied  in  the  very  idea  of  free  govern- 
ment, and  that  an  act  of  the  legislature  in  con- 
travention of  it,  is  not  a  law  at  all, — not  an  act 
within  the  authority  of  the  legislative  agents  of 
a  free  people. 

Proportionality  essential  to  development. 
Examining  the  matter  in  the  broadest  light,  it 
is  clear  that  proportionality  is  an  essential  ele- 
ment in  the  law  of  development,  the  law  of  the 
movement  toward  the  Ideal.  The  better  life 
must  receive  the  higher  reward  in  order  that 
an  influence  may  be  brought  to  bear  on  the 
lower  life  to  move  it  toward  the  higher.  If,  in 
any  respect,  the  inferior  is  rewarded  equally 
with  the  superior,  one  influence  tending  to  urge 
the  inferior  to  acquire  superiority  is  lost.11 
The  best  must  prosper  most,  for  if  the  worse 

10  See  Cooley  on  Taxation ;  the  works  of  Walker  &  Mill,  on 
Political   Economy. 

11  Sometimes  as  a  choice  of  the  least  of  two  evils,  we  have  to 
forego  one  proportionality  in  order  to  secure  another  of  higher 
value. 


PBINCIPLES   THE   LAW   SHOULD   FOLLOW  171 

prosper  most,  the  movement  will  be  downward. 
If  A  at  the  zero  of  conduct  and  of  promise, 
receives  the  zero  reward  and  the  zero  repres- 
sion, then  B  at  one  degree  of  conduct  or  prom- 
ise above  zero,  should  receive  one  degree  of 
reward;  C  at  two  degrees  above,  two  degrees 
of  reward;  D  at  three  degrees  above,  three  de- 
grees of  reward,  and  so  on :  and  M  two  degrees 
below  zero,  should  receive  two  degrees  of  re- 
pression and  so  on.  The  same  thing  holds  in 
relation  to  good  and  bad  faculties  in  the  same 
man,  as  in  the  relations  between  one  man  and 
another.  If  B  is  deprived  of  a  motive  for 
struggling  to  improve  himself,  and  come  up  to 
C's  standard,  and  C  has  no  motive  to  maintain 
his  superiority,  he  might  as  well  be  as  lazy, 
careless,  dishonest,  and  selfish  as  B — as  he  will 
fare  as  well.  So,  if  C  and  D  are  treated  alike, 
C  has  no  motive  to  go  up,  and  D  may  as  well 
relax  his  efforts,  and  fall  to  the  level  of  C. 
The  law  of  development  therefore  requires  ap- 
portionment. Only  by  a  carefully  adjusted 
graduation  of  repressions  and  encouragements 
along  the  whole  line,  can  we  bring  to  bear  on 
every  man  and  on  every  faculty  a  continuous 
pressure  upwards.  If,  in  going  from  bottom 
to  top,  there  is  any  step  of  merit  that  is  not 
met  by  a  corresponding  change  of  reward,  the 
impetus  to  take  that  step  is  absent. 


172         LEGAL   DOCTRINE   AND   SOCIAL   PEOGEESS 

Diffusion  of  burdens  and  benefits.  Closely 
allied  to  the  principle  of  proportionality  and 
in  fact  a  corollary  from  it,  is  the  principle  of 
the  diffusion  of  burdens  and  benefits  that  re- 
sult from  natural  causes  or  broad  social  in- 
fluences and  not  from  the  individual  conduct  of 
the  persons  burdened  or  benefited. 

Distributing  the  effects  of  accidents.  The 
leveling  of  accidents,  and  the  equalization  of 
equal  lives  so  far  as  practicable,  is  a  duty 
clearly  imposed  by  the  law  of  development.  It 
results  from  the  principle  of  proportion,  not 
only  that  lives  of  unequal  merit  must  be  un- 
equally treated,  but  that  lives  of  equal  merit 
must  fare  equally  well.  If  the  accident  of 
birth,  color,  or  sex  gives  certain  persons  an 
advantage  over  others  of  equal  or  greater 
merit,  the  law  of  development  is  broken.  If 
a  fire  or  flood  destroys  the  property  of  good 
and  bad  alike,  or  damages  some  good  man 
while  it  leaves  a  bad  one  undisturbed,  the  prin- 
ciple of  proportion  is  violated.  Earthquakes, 
tempests,  lightnings,  etc.,  and  to  some  extent 
diseases,  fall  indiscriminately  upon  inferior 
and  superior.  If  the  cyclone  and  lightning 
could  become  endowed  with  powers  of  intelli- 
gent selection, — if  discriminating  earthquakes 
would  occur  each  year  or  two, — if  the  Angel  of 
Flames  could  be  enlightened,  and  the  Demon  of 


PRINCIPLES   THE   LAW   SHOULD   FOLLOW  173 

Disease  be  harnessed  to  the  Law  of  Develop- 
ment, the  world  would  not  be  long  in  reaching 
the  millennium.  But,  as  we  cannot  make  these 
powers  observe  a  true  proportion,  the  only 
thing  remaining  is  to  neutralize  their  force  as 
far  as  we  are  able,  in  order  that  if  we  cannot 
make  them  work  consistently  for  good,  we  may 
at  least  prevent  their  giving  evil  an  advantage. 
Government  should  equalize  losses  through 
insurance.  Insurance  rests  upon  and  is  justi- 
fied by  the  principle  of  distributing  accidental 
loss,  and  the  same  principle  of  justice  that  makes 
it  right  to  spread  a  loss  over  the  whole  number 
of  stockholders  or  customers  of  an  insurance 
company,  instead  of  letting  it  fall  in  a  crushing 
lump  upon  the  innocent  individual  that  Nature 
has  hurt  in  her  blind  rush, — that  same  principle 
makes  it  more  right  that  the  loss  should  be 
spread  over  the  whole  community,  or  the  whole 
world,  and  thus  destroy  completely  the  favorit- 
ism of  Nature.  It  is  more  just  that  a  particu- 
lar class  should  bear  the  whole  of  a  burden  not 
due  to  its  fault  than  that  an  individual  should 
bear  it.  A  disproportion  between  classes  for 
other  cause  than  disproportion  of  merit  violates 
the  law  of  development  as  truly  as  a  similar 
disproportion  between  individuals.  The  public 
should  insure  its  citizens  against  loss  of 
property  without  their  fault,  workmen  against 


174         LEGAL   DOCTRINE   AND   SOCIAL   PEOGBESS 

sickness  or  accident,  and  their  families  and  de- 
pendents against  their  death,  for  in  all  these 
ways  burdens  fall  on  individuals  without  their 
fault,  and  such  burdens  ought  to  be  borne  by  the 
community  in  order  that  equal  lives  may  fare 
equally  well.  No  accidents  or  circumstances 
independent  of  his  own  conduct  must  be  al- 
lowed to  favor  or  burden  any  individual,  so  far 
as  such  effects  can  be  prevented  without  too 
high  cost. 

Equal  pay  for  equal  work.  One  result  of  this 
principle  of  the  equalization  of  equal  lives  is 
that  the  same  service  should  receive  the  same 
pay  whether  performed  by  man,  woman,  or 
child.  Another  is  that  ultimately  all  transpor- 
tation should  conform  to  the  principle  of  the 
Post  Office, — one  price  regardless  of  distance, — 
so  that  the  accident  locality  may  effect  indi- 
vidual lives  as  little  as  possible. 

Diffusion  calls  for  many  reforms.  A  progres- 
sive income  tax,  the  limitation  of  the  inheritance 
of  capital,  public  ownership  of  monopolies,  and 
the  repeal  of  all  indirect  taxation,  are  also  de- 
ductions from  this  principle.  So  also  is  the  pub- 
lic guarantee  of  a  reasonable  opportunity  to 
earn  an  honest  living.  The  state  ought  to 
guarantee  the  innocent  poor  at  least  the  oppor- 
tunity to  procure  as  good  shelter  and  food  as  it 
provides  for  the  criminals  in  its  jails.     Cases 


PEINCTPLES   THE   LAW   SHOULD   FOLLOW  175 

are  not  rare  in  which  men  and  women  have 
violated  the  law  for  no  other  purpose  than  to 
secure  the  protection  from  hunger  and  cold  af- 
forded by  a  prison,  or  a  home  for  fallen 
women.  The  state  cannot  starve  its  arrested 
criminals,  nor  expose  them  to  the  weather; 
equal  treatment  of  equally  valuable  lives  re- 
quires that  innocence  should  at  least  fare  no 
worse  at  the  hands  of  society. 

The  principle  of  intelligent  selection.  An- 
other principle  of  vital  moment  in  the  develop- 
ment of  the  law  and  its  work  of  encouraging 
good  and  repressing  evil,  is  the  replacement  of 
automatic  selection  by  intelligent  selection.  In 
the  vast  series  of  reactions  between  groups  of 
men  and  between  each  man  and  the  whole 
physical  and  social  environment,  whereby  some 
faculties,  individuals,  and  modes  of  action  are 
selected  for  limitation  or  destruction,  and  other 
faculties,  individuals,  and  modes  of  action  are 
selected  for  preservation,  multiplication,  and 
development,  the  methods  of  selection  and 
molding  fall  into  two  radically  different 
groups  which  I  shall  distinguish  as  Automatic 
Selection  and  Intelligent  Selection.  The  latter 
involves  the  use  by  man  of  the  forces  of  nature 
and  life,  with  a  conscious  purpose  of  repressing 
evil,  and  encouraging  good,  or  in  any  way 
molding  qualities   and   conduct  into   an  ideal 


176         LEGAL   DOCTRINE   AND   SOCIAL   PEOGEESS 

form.  Automatic  Selection  includes  all  species 
of  modification  in  which  this  element  of  intelli- 
gent selective  purpose  is  absent. 

We  may  illustrate  the  principle  most  vividly 
perhaps  by  a  reference  to  the  development  of 
animal  life.  For  example,  the  animals  gener- 
ally used  for  food  by  the  wolves  of  a  certain  is- 
land become  too  few  to  supply  the  wants  of  the 
wolves,  and  they  have  to  pursue  the  deer  that 
dwell  in  the  forests.  But  the  deer  are  fleeter 
than  most  of  the  wolves.  The  slow  wolves  die, 
— the  fast  ones  live  and  multiply.  Their  prog- 
eny inherit  their  qualities.  The  slowest  deer 
are  caught, — the  fleetest  escape  and  multiply. 
The  continuous  chasing  they  receive  develops 
their  speed  still  more,  and  the  new  generation 
is  swifter  than  the  old  one.  So  the  fleeter 
wolves  find  a  fleeter  set  of  deer,  and  so  the 
double  development  and  the  double  destruc- 
tion go  on  for  hundreds  of  years,  each  buying 
increase  of  caution,  fleetness,  and  strength  with 
ages  of  cruel  warfare,  heartbreaking  pursuit, 
savage  and  bloody  banqueting,  famine,  and  tor- 
ture-deaths. That  is  natural  selection,12  the 
survival  of  the  fittest,13  in  the  struggle  for  ex- 

i2  "The  preservation  of  variations  that  are  beneficial  to  the 
being  under  its  conditions  of  existence,"  Origin  of  Species, 
p.  63. 

is  Not  wholly  a  fortunate  phrase,  for  it  seems  to  imply 
the   survival   of  those  who  are   really  the  best,   whereas   it 


PEINCIPLES   THE   LAW    SHOULD   FOLLOW  177 

istence.  How  different  the  process  can  be 
made  by  man's  intelligent  direction. 

Advantages  of  intelligence.  The  fleetness  of 
a  race  of  dogs  or  horses  can  be  doubled  with- 
out subjecting  them  to  hunger,  cold,  or  cruelty 
of  any  sort.  They  may  live  a  life  of  peace  and 
comfort  and  yet  the  progress  wished  for  may 
be  made  in  a  hundredth  part  of  the  time  that 
Nature's  cruel  methods  would  require.  It 
would  be  done  by  careful  training  and  breeding 
from  the  best. 

Intelligent  Selection  has  the  most  tremendous 
advantages  over  Automatic  Selection  in  respect 
to  power,  accuracy,  rapidity,  economy  and  kind- 
ness ;  nothing  is  of  vaster  moment  to  humanity 
than  the  replacement  of  Automatic  Selection  by 
Intelligent  Selection,  and  the  improvement  to 
the  utmost  of  the  methods  of  Intelligent  Selec- 
tion. 

Nature's  processes  are  very  wasteful.  She 
produces  a  million  of  germs  in  order  that  one 
may  mature.  She  sows  with  the  wind.  Man 
on  the  other  hand  plants  carefully  the  seeds  or 
slips  he  wishes  to  grow,  gives  them  proper  soil 

means  only  that  those  who  are  fittest  to  meet  the  conditions 
of  present  existence,  survive,  and,  if  those  conditions  are 
morally  bad,  as  in  countries  where  power  and  wealth  go  to 
conscienceless  cunning,  instead  of  to  merit,  or  unselfish  service, 
then  the  worst  will  survive,  so  far  as  these  forces  affect  the 
result. 


178         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

and  depth,  proper  light,  heat,  moisture  and  suf- 
ficient space  that  they  may  not  choke  each 
other.  Intelligence  operates  without  the  terri- 
fic wastes  and  all  enveloping  chance  that  harass 
Nature  and  compel  her  to  expend  a  world  of 
energy  and  eons  of  time  for  every  atom  of 
progress  she  procures. 

Nature's  methods  not  a  pattern  for  human 
law.  Not  only  is  Automatic  Selection  very 
cruel,  slow,  and  wasteful,  it  is  also  very  in- 
accurate. It  frequently  fosters  an  evil  quality 
because  it  is  linked  with  a  good  one,  and  dis- 
tributes its  encouragements  and  repressions  in 
proportion  to  accidents  of  locality,  birth,  re- 
lationship, lightning,  fire,  flood,  and  other 
things  that  have  nothing  to  do  with  the  intrin- 
sic virtues  and  merits  of  the  man. 

While  Nature,  aside  from  conscious  human 
direction,  conforms  in  a  rough  general  way  to 
the  law  of  development,  yet,  in  many  particular 
instances,  she  fails  of  a  true  application  of  the 
principle  because  of  her  inability  to  distinguish 
between  the  quality  of  the  soldier,  and  the 
eminence  on  which  his  battery  rests, — between 
the  industry  and  skill  of  the  farmer,  and  the 
fertility  or  location  of  his  land, — between  the 
use  of  strength,  foresight,  or  intelligence  for 
moral  purpose,  and  their  use  for  selfish  and  im- 
moral purpose, — the  strongest  and  cunningest 


PEINCIPLES    THE    LAW    SHOULD    FOLLOW  179 

conquers,  whether  he  is  a  robber,  or  the  inno- 
cent defender  of  his  home,  whether  he  is  seek- 
ing to  ruin  a  railroad  for  his  private  emolu- 
ment, or  endeavoring  to  save  his  country  from 
conquest,  division  or  slavery. 

The  law  must  discern  between  good  and  evil. 
The  incapacity  in  Mother  Nature  to  draw  the 
line  in  individual  cases,  between  the  man  and 
his  circumstances,  or  between  the  good  and  evil 
use  of  power  and  intelligence,  tends  to  obliter- 
ate the  true  connection  between  character  and 
consequence.  Good  conduct  can  not  be  in- 
creased by  securing  to  men  advantages  in  pro- 
portion to  climate  or  soil,  nearness  to  a  city, 
other  accidental  circumstances  unconnected  with 
their  personal  superiorities  and  defects,  or  in 
proportion  to  anything  else  whatever  than  good 
conduct  itself,  and  the  manifestation  of  quali- 
ties that  promise  it. 

It  is  for  us  to  perfect  the  application  of  the 
principle  that  underlies  the  rude  justice  of 
Nature,  and  we  have  already  done  something 
in  this  direction.  Nature  left  the  thief  and 
murderer  to  private  vengeance.  On  the  whole, 
this  made  it  dangerous  to  steal  or  kill,  but  many 
times  the  avenger  himself  was  slain,  or  the  rob- 
ber retained  his  booty  unmolested.  But  intelli- 
gence entered  the  game,  and  the  criminal  must 
now  destroy  eighty  millions  of  people  before 


180         LEGAL   DOCTEINE   AND   SOCIAL   PEOGEESS 

he  can  be  safe,  and  the  earth  has  become  a 
globe  of  glass  that  will  not  hide  his  flight.  The 
certainty  that  repression  will  fall  upon  the  evil- 
doer is  very  much  greater  than  when  it  de- 
pended upon  automatic  selection.  Again  our 
civil  courts  have  been  established  to  distribute 
losses  so  that  they  will  fall  upon  demerit,  rather 
than  on  merit.  Instead  of  leaving  the  dispute 
to  angry  private  settlement,  in  which  the  strong- 
est or  most  cunning  would  succeed  without  re- 
gard to  justice,  the  government  steps  in,  with 
cool  deliberate  judgment,  to  compel  the  one  in 
fault  to  bear  the  loss,  to  save  the  innocent  from 
wrong,  and  give  to  merit  its  reward.  Thus 
adding  certainty  of  repressing  evil  and  increas- 
ing good. 

We  still  rely  too  far  on  natural  selection. 
The  work  that  remains  to  be  accomplished 
in  this  matter  of  substituting  Intelligent  for 
Automatic  Selection,  is  to  the  work  that  has 
been  done,  as  North  America  to  the  Island  of 
Manhattan.  We  use  the  intelligent  selection  of 
a  court  of  justice  to  settle  the  difficulties  of 
man  and  man,  or  of  state  and  state,  but  we 
leave  the  disputes  of  labor  and  capital  to  be  ad- 
justed by  primitive  methods. 

We  punish  one  who,  by  physical  strength, 
wrests  the  earnings  of  a  citizen  from  his  grasp, 
but,  if  he  uses  mental  strength  to  do  the  same 


PEINCIPLES   THE   LAW    SHOULD   FOLLOW  181 

bad  deed,  we  do  not  punish,  but  applaud  his 
cunning,  if  it  be  not  too  open  and  direct  in  its 
methods.  Strength  of  mind  and  body  in  them- 
selves are  benefits,  but  evil  modes  of  action 
ought  to  be  repressed  whatever  power  be  used 
in  their  performance.  We  have  applied  intelli- 
gent selection  to  the  separation  and  repression 
of  such  modes  quite  perfectly  in  one  case,  but 
far  from  perfectly  in  the  other  and  more  im- 
portant one. 

Intelligent  selection  should  be  applied  to 
human  propagation.  Again,  Intelligent  Selec- 
tion is  applied  to  dogs  and  horses  with  wonder- 
ful results,  but  children  are  left  to  the  primitive 
plan.  Our  domestic  animals  we  breed  from  the 
best, — ourselves  we  breed  on  a  very  different 
plan.  Population  is  held  in  check,  so  far  as  it 
is  restrained  at  all,  by  the  old,  cruel,  imperfect 
methods  of  automatic  selection, — by  hunger, 
cold  and  death,  while  crime  and  disease  are  too 
often  left  to  propagate  themselves  with  the 
fertility  of  desperation. 

The  training  of  a  race-horse,  and  the  care  of 
sheep  and  chickens  have  been  carried  to  the 
highest  degree  of  perfection  that  intelligent 
planning  can  attain.  But  the  education  of  a 
child,  and  the  choice  of  his  employment  are  left 
largely  to  the  ancient  haphazard  plan, — the 
struggle  for  existence,  the  survival  of  the  fittest. 


182         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

We  choose  with  the  utmost  care  the  materials 
of  our  public  buildings,  and  polish  the  columns 
with  marvelous  skill.  But  we  pay  little  or  no 
attention  to  selecting  the  best  materials  for 
the  next  generation, — the  commonwealth  of  to- 
morrow. 

We  have  tried,  with  very  imperfect  success, 
to  establish  intelligent  selection  in  politics,  but 
we  have  not  brought  it  to  bear  to  any  great  ex- 
tent on  industrial  life,  in  order  to  banish  the 
cruelty,  waste,  and  retarding  effects  of  the  old 
Automatic  Selection. 

The  law  should  deal  with  good  and  evil  at 
their  sources.  Finally  it  is  of  vast  importance 
that  the  law  should  go  to  the  sources  of  good 
and  evil.  We  are  too  apt  to  wait  till  the  epi- 
demic comes  and  the  pestilence  is  upon  us  be- 
fore taking  adequate  means  of  stamping  out 
the  germs  of  disease,  requiring  proper  methods 
of  producing  and  handling  our  milk  supply, 
meat  products,  and  other  foods,  and  eliminating 
careless  and  injurious  practices  from  our 
methods  of  living.  We  are  too  prone  to  per- 
mit children  to  grow  up  under  conditions  calcu- 
lated to  create  incompetent  defectives  and 
criminals  instead  of  securing  to  every  child  the 
conditions  essential  to  normal,  healthful  and 
moral  development  and  so  eradicating  the 
causes  of  evil  at  the  root. 


PRINCIPLES   THE   LAW   SHOULD   FOLLOW  183 

There  is  no  more  potent  method  of  diminish- 
ing evil  than  to  kill  it  in  the  bud,  and  prevent 
the  scattering  of  the  seed.  And  there  is  no 
better  way  of  securing  good  than  by  nourishing 
it  in  the  young,  and  giving  it  every  means  of 
development.  Foster  the  promise  of  good  and 
cancel  the  promise  of  evil.  This  is  one  of  the 
most  important  of  all  the  applications  of  the 
principle  of  Intelligent  Selection.  We  have 
done  comparatively  little  good  work  in  this 
direction. 

A  state,  nation  or  industrial  system  that 
gives  little  attention  to  education,  permits  crim- 
inals to  multiply,  leaves  the  slums  of  our  cities 
to  rot  in  the  vitals  of  humanity  and  breed  a  pes- 
tilence for  the  future,  is  not  making  a  satis- 
factory effort  to  conform  to  the  law  of  develop- 
ment. 

Summary.  Summing  up  the  foregoing  dis- 
cussion we  may  now  state  in  a  single  paragraph 
the  law  of  development,  or  the  essential  princi- 
ples to  which  the  law  should  conform  in  the 
process  of  molding  men  and  institutions  to 
higher  types,  viz:  the  proportional  repression 
of  evil  actions  and  qualities,  and  encouragement 
of  good  actions  and  qualities,  by  all  means  not 
costing  more  than  the  worth  of  what  they 
achieve,  remembering  that  different  methods 
are  proper  in  different  stages  of  development, 


184         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

that  we  must  always  endeavor  to  reach  the 
sources  of  good  and  evil,  to  level  the  effect  of 
accidents,  to  equalize  equally  valuable  lives, 
and  that  it  is  always  of  the  utmost  importance 
to  replace  automatic  selection  by  intelligent 
selection  so  far  as  practicable. 


THE    GREAT   FUNCTION    OF    THE   LAW    IS    SERVICE 

THE    PROMOTION    OF    GOOD    AND    THE    DIFFUSION 
OF  BENEFIT 

Standards  of  good  and  evil  change.  The 
determination  of  what  is  good  and  what  is 
evil  depends  upon  experience  and  reason,  and 
varies  as  we  have  seen  in  different  times  and 
countries.  One  age  regards  slavery  as  a  divine 
institution.  Another  age  holds  slavery  in  ab- 
horrence but  thinks  the  wage  system  and  com- 
petitive industry  to  be  in  full  accord  with 
justice  and  the  public  good.  A  third  age  may 
regard  competition  and  the  wage  system  as 
only  a  little  more  civilized  than  chattel  slavery, 
holding  that  the  purchase  of  labor  in  competi- 
tive market  is  really  the  purchase  of  manhood 
and  womanhood  at  the  lowest  prices  at  which 
the  necessities  of  the  workers  may  compel 
them  to  sell ;  that  to  buy  labor  according  to  the 
law  of  supply  and  demand  is  to  buy  men  as 
commodities,  degrading  manhood  to  the  level  of 
corn  and  cotton,  marble  and  lead,  pig-iron  and 
lumber.    In   the    South   before   the   war,    the 

185 


186         LEGAL   DOCTKINE   AND   SOCIAL  PROGRESS 

planter  bought  men  out  and  out,  took  the  whole 
life  of  a  man,  and  all  his  labor,  and  gave  back 
enough  to  keep  him  in  good  condition,  because 
it  was  the  owner's  interest  to  keep  him  so;  in 
the  North  to-day,  we  do  nearly  the  same  thing 
in  substance, — we  do  not  buy  a  whole  life  at 
once,  but  we  buy  it  on  the  installment  plan,  a 
day,  a  week,  a  month,  a  year  at  a  time,  and  the 
purchaser  in  some  cases  takes  the  whole,  the 
same  as  before,  but  the  market  price  is  not  al- 
ways enough  to  keep  the  rented  life  in  good  con- 
dition, and  when  the  worker's  prime  is  past, 
capital  no  longer  buys  his  years,  but  casts  him 
aside  for  younger  men,  thus  squeezing  the  life 
out  of  each  generation  so  far  as  possible  for  the 
benefit  of  the  employing  class,  and  forfeiting  the 
productive  energy  and  civic  and  social  values 
that  come  from  a  share  in  the  profits  and  control 
of  industry  by  the  workers. 

What  is  beneficial?  Experience  and  reason 
down  to  date  appear  to  have  clearly  demon- 
strated that  certain  conduct,  qualities  and  con- 
ditions are  beneficial,  and  certain  other  con- 
duct, qualities  and  conditions  are  detrimental 
to  society  as  follows : 

Beneficial  conduct,  qualities  and  conditions: 


Security 

Good  FaitH 

Character 

Liberty 

Care 

Education 

Equality 

Efficiency 

Knowledge 

THE   LAW   IS   FOR   SERVICE 


187 


Skill 

Sympathy 
Kindliness 
Social  purity 
Social  cohe- 
sion 


Justice  Health 

Order  Wealth 

Stability  Democracy 

Certainty  Diffusion  of 

Truth  benefit 

Eeliability  Power  over 

Confidence  nature 

Prudence  Progress 

Foresight  Science 

Industry  Art 

Economy  Invention 
Association 
Combination 
Cooperation 
Exchange 


What  is  detrimental?  Detrimental  conduct, 
qualities  and  conditions,  consist  of  the  oppo- 
sites,  absences  and  denials  of  the  above;  and 
manifest  themselves,  so  far  as  conduct  is  con- 
cerned, in  the  following  forms: 

(1)  Direct  or  positive  aggressions  such  as 
murder,  theft,  arson,  assault  and  battery, 
cruelty,  deceit,  slander  and  libel,  malicious 
prosecution,  imprisonment  of  innocent  wit- 
nesses to  keep  them  on  hand  till  the  trial,  con- 
finement of  young  offenders  in  close  contact 
with  veteran  criminals,  etc.,  etc. 

(2)  Indirect  or  negative  aggressions  such 
as  failure  to  fulfill  agreement,  lack  of  due  care, 
delay  or  failure  of  justice  at  the  hands  of  the 
law,  etc. 


188         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

(3)  Eefusal  of  voluntary  cooperation  for 
valuable  purposes  such  as  the  exercise  of  voting 
franchise,  the  education  of  children,  administra- 
tion of  justice,  etc. 

All  three  classes  of  actions  are  negative  in 
greater  or  less  degree  to  the  beneficial  elements 
above  enumerated  and  diminish  the  coopera- 
tion and  coherence  which  constitute  the  essence 
of  society. 

The  law  is  beginning  to  oompel  cooperation. 
The  third  division  is  left  for  the  most  part 
to  education  and  ethics.  The  law  does  not  as 
a  rule  attempt  to  compel  cooperation,  but  con- 
fines itself  to  the  prevention  and  punishment 
of  aggressions  and  the  redistribution  of  loss  oc- 
casioned by  them.  In  some  cases,  however,  the 
law  does  compel  cooperation,  as  when  it  de- 
mands the  payment  of  taxes,  orders  men  to 
serve  in  the  army  or  militia,  requires  parents 
to  send  their  children  to  school  until  they  attain 
a  certain  age,  or  makes  property  owners 
cooperate  in  or  contribute  to  the  building  of 
pavements  and  sewers,  the  planting  of  trees,  or 
other  public  improvement. 

Equality  as  known  by  the  law.  The  term 
equality  in  the  above  analysis  of  benefits  does 
not  mean  per  capita  equality,  in  wealth,  earn- 
ings, or  any  other  element  of  life.  The  law 
does  not  guarantee  equality  of  possessions  any 


THE   LAW    IS   FOR   SERVICE  189 

more  than  equality  of  size,  weight  or  ability, 
neither  can  it  accord  the  same  treatment  to  a 
criminal  as  to  a  man  whose  life  is  highly  moral 
and  useful.  Equality  in  the  sense  of  the  law 
means  equality  of  opportunity  and  the  equal 
treatment  of  all  persons  under  the  same  es- 
sential circumstances.  There  is  a  school  of 
socialists  who  advocate  the  equal  division  of 
wealth.  Two  brothers  in  business  or  in  fact 
any  group  of  partners  or  cooperators  may 
voluntarily  agree  to  divide  the  product  or  profit 
of  the  enterprise  equally  without  regard  to  the 
fact  that  some  have  greater  ability  than  others 
and  contribute  more  to  the  creation  of  the  prod- 
uct. With  well  developed  men  the  approba- 
tion of  their  fellows,  the  position  and  op- 
portunity to  manage  large  affairs  that  come 
with  proof  of  ability,  efficient  service,  and  hap- 
piness inherent  in  useful  and  successful  work, 
are  sufficient  spurs  to  industry  without  the 
added  impulse  of  money  payment  in  propor- 
tion to  service.  But  there  are  in  every  com- 
munity men  who  do  not  respond  as  yet  to  the 
higher  motives  and  who  need  the  money  motive 
to  make  them  work.  Any  attempt  to  secure 
equal  division  of  wealth  or  product  by  legisla- 
tive authority  would  tend  to  enervate  this  class 
and  would  be  a  serious  injustice  to  the  more  in- 
dustrious and  conscientious  classes  of  the  com- 


190         LEGAL   DOCTRINE   AND   SOCIAL  PROGRESS 

munity.  The  law  should  do  its  utmost  to  pre- 
vent pauperism  on  the  one  hand  and  the  build- 
ing of  fortunes  from  the  unearned  increment 
taken  from  the  product  of  other  men's  labor 
on  the  other.  Equal  division  by  law  under 
present  conditions  at  least,  would  be  a  contra- 
diction of  the  fundamental  principles  of  justice 
that  it  is  the  duty  of  the  law  to  sustain  and  en- 
force. Justice  calls  for  the  apportionment  of 
benefit,  so  far  as  reasonably  possible,  in  due  pro- 
portion to  merit.  It  does  not  accord  the  man  of 
ability  more  wives  or  more  votes  than  his  in- 
feriors because  in  such  cases  no  rational  ap- 
portionment is  reasonably  possible.  But  in  the 
case  of  payment  for  service  rendered  a  fairly 
accurate  adjustment  of  benefit  to  merit  is  at- 
tainable, so  that  any  establishment  of  equality 
in  the  division  of  product  must  be  developed  to 
adopt  such  a  system  with  good  results.  In- 
dustrial education,  cooperative  industry  and 
social  evolution  may  in  time  develop  a  type  of 
man  who  will  work  for  his  country  as  earnestly 
as  he  will  fight  for  it  without  regard  to  the 
money  motive.  When  that  time  comes  it  may 
be  possible,  if  it  should  then  be  deemed  de- 
sirable, to  equalize  men  in  respect  to  wealth 
and  earnings.  But  as  human  nature  exists  to- 
day in  the  mass  of  men  the  equalization  of 


THE   LAW   IS   FOR   SERVICE  191 

wealth  by  force  of  law  would  be  exceedingly 
unjust  and  disastrous. 

Legal  meaning  of  liberty.  Liberty  means 
freedom  to  do  anything  that  has  not  been 
clearly  proved  to  be  detrimental  to  social  in- 
terests,— (1)  full  freedom  to  all  that  is  bene- 
ficial to  society;  (2)  freedom  also  in  the  field 
of  doubt  for  the  sake  of  progress ;  and  because 
happiness  of  the  individual  is  the  object,  and 
liberty  one  of  the  primary  and  most  important 
means  of  its  attainment,  the  burden  of  proof 
in  every  case  is  upon  those  who  advocate  a 
limitation  of  liberty;  (3)  no  freedom  at  all  to 
do  what  is  clearly  contrary  to  the  public  good. 
No  one  can  be  allowed  any  liberty  at  all  to  com- 
mit murder,  theft  or  arson.  Even  the  freedom 
of  speech  and  public  assembly  must  be  so 
limited  as  to  exclude  aggressions  upon  indi- 
vidual rights  and  incitements  to  disorder  and 
deeds  of  violence.  Nor  is  it  necessary  to  wait 
in  every  case  until  the  dangerous  words  are 
spoken  before  interposing  the  prohibitions  of 
the  law.  If  you  see  a  man  piling  brush  against 
your  house  and  about  to  scratch  a  match  to  set 
it  on  fire  you  do  not  have  to  wait  till  the  house 
is  ablaze  before  arresting  him. 

The  law  makes  for  stability.  For  the  sake  of 
stability,  certainty  and  prevision  the  law  draws 


192         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

broad  lines,  prescribes  forms  and  methods  of 
procedure,  establishes  precedents  and  lays 
down  presumptions.  After  twenty  years  your 
adverse  possession  becomes  a  title.  You  must 
sue  for  a  tort  within  six  years,  and  after  thirty 
years  a  deed  or  will  proves  itself,  the  witnesses 
being  presumed  to  be  dead.  If  a  man  or  woman 
is  absent  for  seven  years  without  being  heard 
from,  he  or  she  is  presumed  to  be  no  longer 
alive  and  the  wife  or  husband  of  the  absentee 
may  marry  again.  These  are  a  few  illustra- 
tions of  the  tendency  to  make  broad  rules  to 
favor  the  stability  and  certainty  of  life  and 
guard  against  the  intrusion  of  old  claims  long 
after  the  facts  and  evidence  surrounding  them 
had  passed  into  oblivion  and  the  lives  of  the 
parties  concerned  had  developed  into  new  lines 
in  apparent  security  and  which  the  law  after 
the  lapse  of  a  reasonable  time  will  not  allow  to 
be  disturbed. 

Usages  of  business  involved  in  or  affecting 
cases  that  come  before  the  courts  are  ascer- 
tained by  them  and  enforced  if  found  to  be 
just  and  reasonable.  A  large  part  of  the  law 
of  contracts  and  property  consists  of  these 
usages  which  have  been  established  in  court 
and  judicially  approved  as  elements  to  be  taken 
into  account  in  interpreting  rights,  construing 


THE   LAW   IS   FOE   SERVICE  193 

contracts,  wills  and  statutes  and  in  giving  judg- 
ment. 

Some  branches  of  the  law  are  antiquated. 
Forms  and  rules,  usages  and  precedents  often 
cling  to  the  law  long  after  the  reasons  for  them 
have  ceased  to  exist,  so  that  while  the  mass  of 
the  law  can  be  explained  on  principles  of  justice 
and  common  sense  as  understood  to-day,  we 
have  to  go  back  to  the  feudal  system,  to  Saxon 
times,  and  even  to  the  German  forests  to  find 
the  origin  and  reason  for  parts  of  the  law. 
These  rudimentary  remnants  of  the  past  will 
be  found  particularly  in  the  law  of  real  estate, 
and  the  law  of  procedure,  but  appear  also  in 
contracts  and  criminal  law  and  other  parts  of 
our  system  of  jurisprudence.1 

The  law  is  inadequate  as  yet  in  securing 
economy.  Economy  of  time,  resources  and 
happiness  is  a  benefit  in  respect  to  which  the 
science  of  the  law  is  inadequate  as  yet.  It  is 
time  that  cost  should  determine  in  large  degree 
the  extent  of  any  interference  with  conduct,  and 
decide  which  method  of  prevention  and  de- 
velopment, the  law,  education,  or  public  opinion 
is  to  be  used ;  but  the  rate  of  change  in  social 
conditions  must  not  be  pushed  by  the  law  so 

i  For  examples  the  reader  is  referred  to  Sir  Hknbt  Maine's 
Ancient  Law;  and  Justice  Oliver  Wendell  Holmes's  book  on 
The  Common  Law. 


194         LEGAL   DOCTRINE   AND   SOCIAL   PEOGBESS 

fast  as  to  make  the  cost  to  the  present  genera- 
tion greater  than  the  gain.  Aside  from  the  sub- 
conscious recognition  of  such  limitations,  and 
some  efforts,  generally  inadequate,  to  keep  tax- 
ation within  reasonable  limits,  the  law  has  done 
but  little  in  this  field.  It  has  permitted  the 
most  reckless  destruction  of  natural  resources, 
mines,  forests,  etc.,  for  the  satisfaction  of 
private  greed.  It  has  authorized  the  waste  of 
vast  resources  in  fruitless  attempts  to  secure 
competition  in  public  service  utilities.  And  it 
has  permitted  and  even  sanctioned  the  growth 
of  parasitic  industries  and  classes  that  annually 
waste  hundreds  of  millions  of  our  wealth,  and 
cause  still  greater  loss  through  the  debasement 
of  manhood  and  womanhood  they  entail. 

The  law  has  done  much  for  education.  For 
the  sake  of  progress  the  law  may  favor  sci- 
ence, literature,  art,  invention  and  discovery 
through  the  educational  system,  by  the  found- 
ing and  operating  of  special  institutions  such 
as  the  Smithsonian  and  the  experiment  sta- 
tions of  the  department  of  Agriculture,  the 
provision  of  funds,  the  offering  of  prizes, 
and  the  granting  of  temporary  monopolies 
to  discoverers,  inventors,  and  authors.  Of 
all  the  forms  of  private  monopoly,  a  monopoly 
of  the  results  of  one's  own  ability  and  labor  is 
probably  the  least  objectionable.    And  yet  when 


THB   LAW   IS   FOE   SERVICE  195 

we  remember  that  every  book  and  every  inven- 
tion is  largely  the  result  of  the  accumulated 
wisdom  of  the  past  which  is  the  common  herit- 
age of  mankind  and  that  they  owe  their  value 
to  the  existence  of  highly  civilized  communities 
containing  millions  of  purchasers,  it  becomes 
evident  that  books,  inventions  and  discoveries 
are  largely  social  products.  In  fact  the  very 
training  and  ability  which  enable  the  author 
and  inventor  to  do  their  work  are  themselves  the 
product  of  modern  civilization.  It  is  only 
necessary  to  ask  what  inventions  Edison  would 
have  made  and  what  books  Herbert  Spen- 
cer or  Tennyson  would  have  written  if  they 
had  been  born  in  the  heart  of  Africa  in  order 
to  see  that  the  inventor  and  the  author  are 
themselves  social  products;  and  even  if  Edi- 
son could  have  invented  the  phonograph  or 
Tennyson  could  have  written  his  poems  in  the 
African  jungle  they  would  have  had  no  value 
for  lack  of  a  purchasing  public. 

The  law  of  patents  not  yet  equitable.  Such 
considerations  and  the  fact  that  nearly  every 
great  invention  is  made  by  several  workers  al- 
most simultaneously,  and  is  achieved  by  adding 
some  slight  improvements  to  the  work  of  pre- 
ceding inventors  and  discoverers  who  worked 
toward  success  step  by  step,  generation  after 
generation,  each  adding  a  little  till  the  new  idea 


196         LEGAL   DOCTRINE   AND   SOCIAL  PROGRESS 

is  fully  developed  and  made  practical — all  these 
things  make  it  clear  that  it  is  impossible  to  tell 
how  much  of  the  value  of  any  invention  is 
really  due  to  the  man  who  takes  the  last  step, 
gets  the  patent  and  puts  his  product  in  the 
markets  of  80,000,000  of  civilized  and  progres- 
sive people  who  appreciate  new  ideas  and  are 
able  to  pay  for  them.    In  view  of  all  this  it  is 
not  impossible  that  in  a  cooperative  community, 
instead  of  paying  a  million  a  month  to  the  in- 
ventor of  smokeless  powder  or  the  discoverer 
of    the   Bessemer    process,    and    nothing    per 
month  to  the  discoverer  of  rr-rays  or  the  anti- 
toxin cure  for  diphtheria,  some  plan  may  be 
devised  for  making  all  inventions  and  discover- 
ies public  property  with  judicial  appraisal  of 
their  values  (subject  to  revision  from  time  to 
time  in  the  light  of  experience  and  the  growing 
use  or  disuse  of  the  new  production),  and  the 
payment  of  royalties  or  of  life  annuities  suffi- 
cient to  constitute  a  tremendous  spur  to  in- 
vention and  discovery,  but  free  from  the  ir- 
regularities   that    affect    the    present    system 
under    which    some    discoverers    receive    no 
special  compensation  while  others  accumulate 
fortunes  so  great  as  to  be  distinctly  contrary 
to  public  policy  and  the  reasonable  diffusion  of 
wealth.    Whether  or  no   such  a  plan  proves 
practicable  in  the  future,  we  are  of  course  at 


THE   LAW   IS   FOR   SERVICE  197 

present  very  far  from  the  adoption  of  such 
methods,  and  must  make  the  best  of  our  patent 
and  copyright  laws  by  means  of  such  modifica- 
tions as  experience  indicates  are  necessary  to 
bring  them  more  fully  into  harmony  with  justice 
and  the  public  good. 

The  law  must  do  more  for  industrial  develop- 
ment.    Of   all  the  benefits   the  law   can  help 
society  to  secure  none  is  of  greater  moment 
than  cooperation  for  valuable  industrial   and 
social    purposes.    From   the    days    when    our 
savage    ancestors   wandered   in   the   primeval 
forests  with  little  or  no   cooperation  beyond 
what  was  necessary  for  the  raising  of  offspring, 
down  to  the  present  time  when  every  civilized 
community  presents  a  vast  network  of  coopera- 
tion in  numberless  variety  of  political,  indus- 
trial   and    social    forms,    the    history    of    the 
development  of  civilization  has  been  in  large  de- 
gree the  story  of  the  growth  of  cooperation  in 
larger  and  larger  circles  and  ever  increasing 
variety.    And  to-day  there  is  no  better  test 
of  the  degree  of  civilization  to  which  any  com- 
munity has  attained  than  the  extent  to  which  its 
members  have  learned  to  cooperate  with  each 
other   for  their   common   purposes.     The   law 
should  do  its  utmost  at  all  times  to  favor  the 
growth  of  cooperation  in  forms  that  are  in  har- 
mony with  the  public  good,  and  to  discourage 


198         LEGAL   DOCTRINE   AND   SOCIAL   PEOGRESS 

and  suppress  such  forms  and  methods  of  com- 
bination as  experience  may  prove  to  be  contrary 
to  social  well-being.  This  may  be  accomplished 
by  according  profit  and  advantage  to  beneficial 
forms  of  organization,  and  attaching  loss,  dis- 
advantage, penalty  and  prosecution  to  detrimen- 
tal forms  of  combination. 

The  whole  empire  behind  every  citizen.  The 
extent  to  which  cooperation  may  be  carried  and 
the  results  which  may  be  achieved  by  it  are  well 
illustrated  by  the  story  of  Cameron,  an  English 
citizen,  who,  incurring  the  displeasure  of  the 
King  of  Abyssinia,  was,  without  cause,  cast  into 
a  dungeon  in  the  fortress  of  Magdella,  on  the 
top  of  a  lofty  Abyssinian  mountain.  It  took 
six  months  to  get  word  of  the  situation  to  Great 
Britain.  When  the  facts  were  known  the  Eng- 
lish Government  at  once  demanded  Cameron's 
release.  The  King  refused.  Within  a  few 
days  thereafter,  ships  of  war  with  ten  thousand 
troops  on  board  were  sailing  down  the  African 
coast.  The  soldiers  marched  across  six  hun- 
dred miles  of  wilderness  under  a  burning  sun, 
climbed  the  mountain,  planted  their  cannon  in 
front  of  the  fortress,  battered  down  the  iron 
gates,  went  down  into  the  dungeon  and  brought 
forth  that  British  citizen,  carried  him  across  the 
six  hundred  miles  of  torrid  territory,  put  him 
on  board  a  white  winged  ship  and  sped  him 


THE   LAW   IS   FOR   SERVICE  199 

to  his  home  in  safety.  That  was  a  splendid 
thing  for  a  great  nation  to  do.  It  cost  Great 
Britain  $25,000,000  and  hundreds  of  lives.  It 
would  have  been  done  no  matter  what  the  cost, 
for  every  dollar  and  every  life  in  the  Empire 
is  behind  each  citizen  to  protect  him  against  in- 
justice and  aggression  in  a  foreign  land. 

But  government  is  not  yet  awake  to  its  whole 
duty  to  its  citizens.  Suppose  Cameron  had 
been  found  in  a  London  sweatshop,  working  at 
exhausting  drudgery  sixteen  hours  a  day  in  a 
filthy,  ill- ventilated  tenement,  for  barely  enough 
to  keep  body  and  soul  together.  Would  the 
English  Government  have  interfered  in  his  be- 
half? Would  it  have  spent  $25,000,000  to  clear 
up  the  slums  and  stop  the  sweating  of  em- 
ployes? No.  Why  not?  Because  civic  pride 
and  patriotism  have  not  as  yet  developed  to  the 
same  extent  as  national  pride  and  patriotism. 
What  we  need  is  a  civic  or  domestic  patriotism 
that  will  put  every  dollar  and  every  life  in  the 
community  behind  each  man  to  protect  him 
from  injustice  and  aggression  at  home  as  well  as 
abroad.  And  the  time  is  coming  when  this  will 
be  realized.  The  spirit  of  justice,  brotherhood, 
kindliness  and  cooperation  is  constantly  grow- 
ing. We  can  see  it  in  the  better  treatment  of 
women  and  children,  in  the  laws  against  cruelty 
to  animals,  in  the  abolition  of  slavery,  in  the 


200         LEGAL   DOCTRINE   AND   SOCIAL   PEOGEESS 

diminution  of  war  and  the  amelioration  of  con- 
flict, when  it  does  occur — the  Red  Cross,  the  hu- 
mane treatment  of  prisoners,  and  the  respect 
for  private  rights  and  property  in  the  enemy's 
territory.  We  can  see  it  in  the  trend  toward 
free  government  that  has  filled  three  continents 
with  the  light  of  civilized  democracy.  We  can 
see  it  in  the  growth  of  industrial  and  social  co- 
operation and  in  the  wide-spread  demand  for 
the  better  division  of  wealth  and  for  the  elimi- 
nation of  the  industrial  and  social  evils  that  still 
cling  to  our  civilization.  It  is  only  a  question 
of  time  when  the  new  spirit  of  justice  and  broth- 
erhood and  civic  patriotism  will  express  itself 
in  laws  and  institutions,  and  every  man  will 
have  the  same  security  against  injustice  in  his 
own  country  that  he  now  has  against  injustice 
in  a  foreign  land. 

The  law  is  a  great  factor  in  all  development. 
In  one  age  war,  conquest  and  autocratic  govern- 
ment weld  men  into  states  and  nations,  and 
slavery  develops  habits  of  continuous  toil.  In 
another  age  competition  develops  initiative, 
enterprise,  invention,  combination,  industrial 
power  and  dominion.  In  a  third  age  coopera- 
tion may  bring  industrial  peace,  security  and 
justice.  Each  age  keeps  the  benefits  worked 
out  under  the  institutions  of  its  predecessors 
while  seeking  to  eliminate  the  evils  of  the  past 


THE   LAW   IS   FOE   SERVICE  201 

through  high  forms  of  political,  social  and  in- 
dustrial organization.  In  all  these  changes  that 
fill  the  history  of  the  race  the  law  is  a  principal 
and  indispensable  factor. 

The  highest  function  of  law  may  yet  become 
the  dominant  one.  The  motives  and  character 
of  men  change  with  the  changing  laws  and  in- 
stitutions. Self-development  and  civic  prefer- 
ment were  the  dominant  motives  in  Greece.  In 
Eome  the  ruling  passion  was  military  conquest. 
In  the  Middle  Ages  it  was  religious  devotion. 
In  the  days  of  chivalry  it  was  devotion  to 
women  and  to  high  ideals  of  personal  honor. 
To-day  the  dominant  motive  is  profit,  money- 
getting,  commercial  conquest.  To-morrow  the 
spirit  of  service  or  the  love  of  doing  good  work 
for  its  own  sake,  which  already  rules  the  lives 
of  many,  may  become  the  dominant  social  mo- 
tive, and  the  prizes  of  life  may  be  awarded 
more  nearly  in  proportion  to  true  social  values 
and  actual  service  and  less  in  proportion  to 
mere  success  in  money-getting  than  is  the  case 
at  present. 


XI 


INTERNATIONAL.  LAW   ALSO   AIMS  AT   MOLDING  MEN 
AND    INSTITUTIONS    TO    HIGHER   TYPES 

International  law  presents  some  interesting 
analogies  and  equally  interesting  contrasts  with 
domestic  law. 

First  principle.  The  first  principle  of  inter- 
national law  is  that  every  nation  is  equal  and 
independent  and  has  for  itself  and  its  citizens 
a  right  to  security,  liberty  and  property  with- 
out interference  so  long  as  the  rights  of  other 
nations  are  not  infringed. 

Equality  of  nations  and  of  individuals.  The 
analogy  with  domestic  law  is  manifest.  In  the 
latter  every  individual  is  equal  before  the  law 
and  has  the  fundamental  rights  of  security,  lib- 
erty and  property.  In  the  law  of  nations  every 
nation  is  equal  before  the  law  and  has  the  same 
fundamental  rights.  Nations  are  not  equal  in 
size,  strength,  wealth  or  value  to  the  world  any 
more  than  individuals,  but  among  nations  as 
among  individuals  justice  demands  equality  of 
opportunity,  equal  security  and  equal  liberty  so 
202 


INTERNATIONAL   LAW    MAKES   FOE   PROGRESS        203 

long  as  the  rights  of  others  are  not  infringed. 
If  they  are  not  to  be  equal  before  the  law,  if 
one  is  to  have  more  right  to  security,  liberty, 
etc.,  than  another,  who  is  to  determine  how 
much  liberty  each  is  to  possess  ?  It  is  the  same 
with  independence,  if  nations  are  not  to  be  re- 
garded by  the  law  as  independent  who  shall  de- 
termine the  degree  of  dependence  that  shall 
belong  to  each.  It  is  manifestly  impossible  to 
arrive  at  any  basis  of  agreement  other  than  that 
of  equality  and  independence  in  the  eye  of  the 
law. 

Applies  to  nations  only.  It  must  be  noted 
that  the  principle  applies  only  to  nations.  The 
law  cannot  give  the  same  rights  to  a  handful 
of  barbarians  as  to  a  powerful  civilized  people, 
therefore  a  broad  line  is  drawn  and  such  groups 
as  are  clearly  not  entitled  to  equality  and  inde- 
pendence are  cut  off  by  the  definition  of  the 
word  nation.  A  nation,  in  international  law  is 
a  permanent  community  of  considerable  size 
and  some  degree  of  civilization,  possessing  a 
fixed  territory  and  having  a  definite  and  effect- 
ive political  organization  with  sovereign  powers 
and  wholly  free  from  external  control. 

The  distinction  between  peoples  entitled  to 
the  rights  of  nations  and  those  that  are  not, 
bears  some  analogy  to  the  line  drawn  by  do- 
mestic law  between  infancy  and  maturity;  the 


204         LEGAL,   DOCTRINE   AND   SOCIAL   PROGRESS 

latter  requiring  full  age  and  sound  mind  as  the 
basis  for  the  rights  of  citizenship. 

Second  principle.  The  second  principle  of 
international  law  is  that  every  nation  has  the 
right  to  use  force,  strategy  and  all  other  neces- 
sary means  except  perfidy  1  to  secure  redress 
or  prevention  when  it  deems  its  rights  invaded 
or  threatened,  or  when  the  rights  of  another  na- 
tion are  invaded  or  threatened. 

In  theory,  international  law  does  not  sanction 
aggressive  war,  but  in  practice  as  there  is  no 
one  but  the  nation  itself  to  decide  whether  its 
rights  and  interests  are  endangered,  in  any  case 
it  is  easy  to  find  an  excuse  to  wage  aggressive 
war.  The  only  penalty  for  such  violation  is  the 
adverse  public  opinion  of  the  civilized  world, 
which  is  without  adequate  means  of  expression 
and  enforcement. 

Restrictions  upon  warfare.  In  recent  times 
usage  and  agreement  among  nations  have 
placed  some  limits  to  the  forms  of  force  to  be 
employed  in  civilized  warfare.  For  example, 
bullets  that  explode  after  striking  the  body  are 
prohibited.     There  is  a  constantly  increasing 

i  Perfidy  in  international  law  means  the  violation  of  com- 
pacts made  in  war  or  with  reference  thereto.  It  is  manifest 
that  no  state  can  be  allowed  the  right  to  break  its  contracts 
made  in  war  or  in  reference  to  war,  otherwise  there  would 
be  no  means  of  security  in  terminating  war  or  carrying  on 
negotiations  for  that  end. 


INTERNATIONAL   LAW    MAKES   FOR   PROGRESS       205 

tendency  to  recognize  and  apply  the  beneficent 
principle  that  the  application  of  force  should 
be  confined  so  far  as  possible  to  the  clash  of 
armed  masses  with  the  least  possible  interfer- 
ence with  the  rights  and  property  of  private 
individuals;  so  that  in  war  between  civilized 
countries,  armies  no  longer  kill  or  maltreat 
women,  children  or  noncombatants,  nor  burn 
and  devastate  towns  and  farms  as  they  march 
through  the  enemy's  country. 

Position  of  other  nations.  In  case  of  war  be- 
tween two  powers  other  nations  may  choose 
whether  they  will  take  part  in  the  conflict  or 
remain  impartial;  a  nation  may  join  one  bel- 
ligerent against  the  other  to  protect  or  advance 
its  rights  and  interests,  or  to  aid  a  cause  it 
regards  as  just  and  worthy  of  support,  as  when 
we  aided  Cuba  in  its  revolt  against  Spanish 
injustice;  or  when  France  assisted  America  to 
resist  the  tyranny  of  England  and  throw  off  the 
yoke  of  King  George. 

Duties  and  rights  of  neutrals.  Nations  that 
choose  to  be  neutral  must  show  no  favor  to 
either  belligerent,  except  such  reasonable  con- 
cessions as  may  have  been  agreed  upon  by 
treaty  before  the  war.  They  must  not  sell  or 
forward  arms  or  ammunition  to  either  bellig- 
erent, carry  any  contraband  of  war,  nor  the 
enemy's  forces  or  dispatches  on  their  vessels; 


206         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

they  must  not  permit  any  act  of  war  in  the 
neutral  territory,  such  as  the  raising  of  an 
armed  force,  or  equipping  of  war  vessels  to  go 
to  the  aid  of  either  party  in  the  struggle.  As 
an  example  of  the  sort  of  modification  of  a 
neutral's  duty  of  impartiality  which  may  be 
made  by  treaty  before  the  war,  we  may  name 
an  agreement  to  allow  the  privateers  of  one 
nation  to  bring  their  prizes  into  port  while  ex- 
cluding the  privateers  of  her  enemies. 

Neutrals  must  not  interfere  with  the  follow- 
ing rights  that  usage  has  accorded  to  belliger- 
ents: (1)  Search  of  vessels  on  the  high  seas 
to  see  if  they  belong  to  the  enemy,  carry  the 
enemy's  goods,  or  contraband  of  war  to  an  en- 
emy's port,  etc.  (2)  Confiscation  of  enemy's 
goods  found  in  neutral  merchant  vessels.  (3) 
Blockade  of  enemy's  ports.  The  right  of 
search  flows  from  the  necessity  of  ascertaining 
what  is  the  enemy's  property  in  order  to  exer- 
cise the  right  of  capture. 

On  the  other  hand,  the  rights  of  nations  that 
remain  neutral  must  be  respected  as  in  time  of 
peace,  and  any  property  found  to  be  neutral 
must  be  treated  as  it  would  be  if  there  were  no 
war. 

If  a  nation  claiming  to  be  neutral  violates 
any  right  of  a  belligerent  or  favors  either  side 
beyond  what  may  be  stipulated  for  by  reason- 


INTERNATIONAL   LAW    MAKES   FOR   PROGRESS        207 

able  treaty  prior  to  hostilities,  she  forfeits  her 
right  to  protection  as  a  neutral,  puts  herself  in 
the  list  of  enemies  and  may  be  treated  accord- 
ingly. 

The  need  for  international  organization  to  en- 
force international  law.  The  contrast  with 
domestic  law  in  respect  to  the  means  of  enfor- 
cing rights,  is  very  strong.  The  individual 
citizen  is  not  allowed  to  undertake  the  adminis- 
tration of  justice  on  his  own  account.  He  must 
not  seek  to  punish,  nor  to  obtain  redress  by 
force,  nor  even  to  defend  his  rights  by  force 
except  in  cases  of  emergency  when  there  is  not 
time  nor  opportunity  to  call  upon  the  law.  The 
nation,  on  the  other  hand,  is  obliged  to  adminis- 
ter justice  on  its  own  account  because  there  is 
not  international  organization  to  which  it  can 
appeal  for  the  protection  and  enforcement  of 
its  rights.  It  may  take  the  matter  to  the  Hague 
Court  or  arbitrate  it  in  some  other  way  if  the 
other  party  to  the  controversy  is  willing,  but 
there  is  no  international  police  or  armed  au- 
thority representing  a  world  organization  to 
compel  the  nations  to  do  justice  in  their  rela- 
tions with  each  other.  There  is  reason  to  be- 
lieve that  this  will  follow  in  the  course  of  time. 
The  Hague  tribunal  is  the  beginning.  A  Par- 
liament of  Nations  and  an  International  Army 
and  Navy  to  enforce  the  decrees  of  the  court 


208         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

and  require  submission  of  disputes  to  judicial 
decision  in  all  cases,  will  surely  follow.2  This 
will  enable  the  nations  to  disband  their  armies 
and  build  their  navies  for  commerce  instead  of 
war.  It  will  free  an  enormous  volume  of  social 
force  for  the  arts  of  peace  and  the  purposes  of 
civilization,  and  work  a  change  similar  to  that 
which  took  place  when  the  organization  of  the 
state  freed  individuals  from  the  necessity  of 
spending  a  great  part  of  their  time  and  re- 
sources in  conflict,  or  in  preparation  for  it,  as 
the  only  means  of  defense  against  the  aggres- 
sions of  their  fellows. 

The  coming  of  universal  peace.  As  intelli- 
gence and  sympathy  increase,  as  commerce 
grows,  as  democracy  develops  and  the  common 
people  who  have  to  do  the  fighting  come  into 
full  control  in  the  various  countries,  interna- 
tional organization  and  disarmament  will  be 
inevitable  and  the  time  will  come  that  Tenny- 
son dreamed  of  in  Locksley  Hall: 

"Till  the  war-drum  throbb'd  no  longer,  and  the 
battle-flags  were  furl'd 
In  the  Parliament  of  man,  the  Federation  of 
the  world." 

2  Read  World  Organization,  by  Raymond  Bbidgman. 


XII 

THB  LAW  IS  A  KESEKVOIK  OF  SOCIAL  PEOGKESS 

The  law  as  a  reservoir.  The  law  is  a  reser- 
voir of  social  progress,  and  this  reservoir  will 
become  stagnant  unless  it  have  an  outlet  and 
an  inlet.  Into  it  the  new  life  of  this  age  must 
flow;  it  must  circulate  and  permeate  the  whole 
and  the  outworn  forms  of  the  past  must  go  out. 
A  stream  that  undammed  is  dissipated  so  that 
its  bed  becomes  dry  when  water  is  most  needed, 
will,  properly  dammed  and  conserved,  irrigate 
miles  of  land  and  make  it  bear  wonderful  crops. 
The  law  is  such  a  reservoir  for  social  progress. 
Perhaps  a  better  illustration  is  that  of  a 
firmly  built  foundation  on  which  the  edifice  of 
social  progress  is  built  up  into  the  sunlight  and 
air.  Below  all  fine  civilization  and  social  prog- 
ress, lies  the  firm  foundation  of  a  slowly  and 
painfully  hammered  out  legal  system.  The 
coral  insect,  deep  in  the  ocean,  lives,  builds  its 
little  accretion  of  enduring  stone  and  dies,  each 
one  bearing  the  coral  stone  nearer  to  the  light 
and  top;  it  is  thus  with  those  who  aid  in  in- 


209 


210         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

creasing  the  lasting  accretions  of  our  legal 
system. 

Progress  leads;  law  follows.  Social  progress 
leads;  the  law  follows.  Laws  cannot  and 
should  not  be  very  far  in  advance  of  the  people. 
Ordinarily  there  should  be  a  distinct  majority, 
if  only  of  influence,  in  favor  of  a  law ;  otherwise 
it  cannot  be  enforced,  and  unenforced  laws 
lessen  the  respect  for  all  law  and  tend  to  law- 
lessness or  anarchy.  Hence  public  opinion 
must  be  educated  by  radicalism  up  to  at  least 
a  moderate  demand  for  a  law  before  it  should 
be  enacted,  and  then  still  further  educated  to 
the  law's  enforcement  and  improvement.  Not 
until  a  predominating  section  of  the  community 
will  support  a  law,  should  it  become  effective. 

Individuals  in  advance.  Often  men  are  in 
favor  of  a  law  which  is  itself  morally  in  ad- 
vance of  them.  Thus  a  drunkard,  knowing  the 
evils  of  drink,  may  sincerely  favor  stringent 
liquor  laws.  I  have  known  gamblers  who, 
though  drawn  almost  irresistibly  to  a  gambling 
house,  wish  everyone  was  closed  so  that  they 
could  not  gratify  their  vice.  Men  have  been 
known  to  work  ardently  for  the  limitation  or 
prohibition  of  their  own  particular  vice.  Most 
everyone  will  publicly  support  the  moral  side 
of  a  question,  even  those  who,  if  it  were  enacted, 


CONSERVING   THE   PROGRESS   OF   THE   PAST       211 

might  secretly  violate  the  law.  "Hypocrisy  is 
vice's  homage  to  virtue,"  said  some  wise  man, 
and  so  moral  advances  in  laws  are  always,  pub- 
licly, well  supported. 

Law  naturally  conservative.  Law  is  natu- 
rally conservative.  It  comes  from  the  past  and 
all  but  a  very  small  accretion  belongs  to  the 
past.  Its  face  is  turned  backward  looking  at 
precedents  and  past  rules.  It  frequently  does 
not  see  present  conditions  which  are  different 
from  past  ones.  Every  good  quality  when  car- 
ried to  excess,  becomes  some  bad  quality.  The 
great  good  quality  of  the  law,  is  its  stability, 
its  strength,  its  conserving  power ;  when  carried 
to  excess,  this  becomes  rigidity,  immobility,  re- 
sistance to  progress  and  change  and  when  com- 
pletely degenerated  it  becomes  an  involved 
technical  system  tied  up  with  red  tape  which 
works  for  the  form's  sake  and  not  for  the  sake 
of  justice. 

Radicalism  must  advance.  Eadicalism  must 
always  go  in  advance  of  the  law  which  holds  it 
in  check.  Eadicalism  is  the  centrifugal  force 
which  tends  to  throw  away  customs,  forms,  and 
institutions;  law  is  the  centripetal  force  which 
draws  them  toward  a  conserving  center. 
Either  working  alone,  means  ruin  and  destruc- 
tion ;  both  working  harmoniously  together  mean 


212         LEGAL   DOCTRINE   AND   SOCIAL  PROGRESS 

beneficent  social  development.  When  radical- 
ism has  proven  itself  good,  wise  and  construct- 
ive and  when  the  public  has  accepted  it,  it  be- 
comes a  part  of  the  law  and  ceases  to  be  radical. 
Hence  we  will  find  institutions  which  are  an 
accepted  and  conservative  part  of  the  frame- 
work of  society  in  one  country,  advocated  in 
another  by  the  extreme  radicals;  yet  at  the 
same  time,  the  second  country  may  have  in  con- 
serving operation  a  well-established  institution 
which  in  the  first  country  is  only  hoped  for  by 
the  extremest  radicals.  Thus  Norway  has  the 
Gothenburg  system  of  liquor  selling;  control 
and  diminution  is  in  such  successful  operation 
that  no  one  considers  its  abolition.  It  is  a  con- 
servative part  of  the  law  there.  In  the  United 
States,  it  is  only  advocated  by  radicals  with  a 
few  imperfect  and  tentative  attempts  here  and 
there.  But  on  the  contrary,  in  several  of  our 
states  we  have  already  the  initiative  and  ref- 
erendum embedded  in  the  state  constitutions 
and  have  always  used  the  referendum  on  all 
constitutions  and  constitutional  amendments; 
in  these  places  it  has  ceased  to  be  radical  and 
becomes  a  conserving  part  of  the  stable  law. 
In  Norway,  on  the  contrary,  the  initiative  and 
referendum  are  only  feebly  advocated  by  a  few 
progressive  thinkers.  Eadicalism  is  not  an  ab- 
solute but  a   relative   school  of  thought.    It 


CONSERVING   THE   PEOGEESS   OF   THE   PAST       213 

stands  for  the  things  that  the  government  is  not 
ready  to  do. 

No  government  radical.  Hence  it  is  that  no 
government  is  really  radical.  As  soon  as  it  gets 
into  power,  it  must  enforce  the  laws  as  they  are, 
therefore,  it  is  only  able  to  make  slow  changes. 
This  is  why  extreme  radicals  are  always  disap- 
pointed when  their  party  gets  into  power ;  from 
the  very  nature  of  its  situation,  it  must  conserve 
and  can  only  make  changes  slowly  and  with  due 
regard  for  the  conditions  which  have  been  cre- 
ated by  past  laws,  even  laws  which  under  pres- 
ent social  conditions  are  working  injustice. 
The  change  must  be  made  gradually  lest  the 
immediate  evils  following  from  a  too  rapid 
change  may  be  greater  than  the  goods  of  the 
reform.  This  is  a  danger  which  the  public 
rarely,  and  the  radicals  still  less  rarely,  see. 
Hence  they  say  the  radical  in  power  has  gone 
back  on  his  principles.  Thus  Premier  Clemen- 
ceau  of  France  has  spoken  and  written  most 
radical  things  and  associated  with  the  trade 
unionist  and  socialist,  and  yet  as  Premier  of 
France  he  sides  with  the  State  and  the  law  of 
the  State  in  putting  down  the  strike  of  his  for- 
mer associates;  he  thereby  shows  his  true 
statesmanship  and  understanding  of  his  posi- 
tion as  head  of  the  legal  system  which  has  been 
built  up  in  France.    No  government  can  be 


214         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

strongly  radical;  for  radicalism  in  England  or 
any  other  country,  you  must  look  outside  of  the 
Eadical  party. 

Progress  secured  at  cost.  It  is  well  that  we 
have  a  great  conserving  reservoir  of  the  past. 
Progress  must  always  be  secured  at  some  cost 
and  that  cost  consists  of  two  things, — the  striv- 
ing of  the  radicals  under  the  impulse  of  ideals 
to  carry  new  laws  or  to  educate  society  to  the 
point  where  it  will  enact  new  laws,  and  the 
cramping  of  society  by  outworn  laws  before  it 
generates  the  energy  to  slough  them  off  and 
create  new  forms.  It  is  far  better,  generally, 
to  secure  progress  at  the  expense  of  some 
cramping  because  not  obtained  fast  enough, 
than  to  sacrifice  it  to  the  whims  and  passing 
passion  of  a  great  radical  uprooting.  Thus,  in 
our  own  country,  it  would  have  been  an  immense 
financial  saving  to  say  nothing  of  the  still  more 
enormous  savings  of  life,  energy  and  love,  if 
the  nation  could  have  paid  the  South  the  full 
market  price  of  the  negro  slaves  before  the 
breaking  out  of  the  Civil  War,  but  owing  to  the 
passions  aroused,  war  was  a  greatly  to  be  re- 
gretted necessity. 

Law  not  necessarily  reactionary.  While  law 
is  seldom  in  advance  of  public  opinion,  and  often 
far  in  the  rear,  it  is  a  serious  error  to  view  the 
law  as  essentially  reactionary  and  over-con- 


CONSERVING   THE   PROGRESS   OF   THE   PAST       215 

servative.  Accepted  legal  doctrine  is,  on  the 
whole,  as  radical  as  human  nature  will  stand 
for.  There  is  nothing  in  the  fundamentals  of 
the  law  to  prevent  progress  or  to  impede  the 
development  of  the  highest  and  noblest  social 
institutions. 

Law  holds  germs  of  progress.  In  fact,  the 
greatest  and  profoundest  legal  doctrines  lay 
sure  foundations  for  higher  civilization  and 
open  the  way  for  formal  and  regular  progress 
to  it.  Search  carefully  the  fundamentals  of  law 
and  in  them  you  will  find,  though  perhaps  in  un- 
developed form,  the  germs  of  all  social  progress, 
of  all  true  reform,  of  even  that  which  seems  at 
present  the  most  radical  and  quite  impossible 
of  attainment.  The  upper  crust  of  legal  enact- 
ments may  hamper  and  bind  society  till  it 
burst  them,  but  below,  in  the  roots  of  the  law, 
are  the  germs,  the  reasons,  the  arguments  of 
all  true  radicalism. 

Law's  elasticity.  There  is  an  elasticity  as 
well  as  rigidity  in  the  law,  its  doctrines  are 
superior  to  its  specific  regulations  but  it  has 
no  dogmas  other  than  moral  or  social  axioms, 
and  it  follows,  therefore,  that  the  law  can  be, 
as  it  has  been,  adapted  to  the  progress  that  men 
and  society  make,  and  no  legal  doctrine  or  the- 
ory can  prevent  this  adaptation.  There  is  no 
such  power  in  precedents  as  to  forbid  the  enact- 


216         LEGAL   DOCTRINE   AND   SOCIAL  PROGRESS 

ment  of  new  statutes,  the  revisions  of  constitu- 
tions and  charters,  the  rendering  of  new  deci- 
sions, or  the  creation  of  new  principles  of 
construction,  where  these  are  needed  to  con- 
form to  newly  accepted  ideals  or  to  fit  new  con- 
ditions. The  law's  forms  and  precedents  built 
up  under  now  old  and  obsolete  ideals  and  con- 
ditions may  hamper  society,  but  search  below 
these  nearly  dead  forms  and  precedents  for  the 
real  roots  of  the  law  and  you  will  find  great, 
far-reaching  principles.  These  may  be  drawn 
on  to  justify,  to  condition,  to  really  build  up 
the  new  statute  law  and  precedent  needed  by 
changed  conditions  of  society  and  by  society's 
further  developed  and  larger  ideals.  Too  many 
people,  seeing  only  the  old  and  likely  worn-out 
precedent,  say  the  law  is  antique  and  cramping. 
Let  them  dig  down  to  its  fundamental  princi- 
ples for  the  justification  of  progress. 

Recognition  of  the  law's  social  service. 
There  is  no  more  fundamental,  far-reaching  re- 
form needed  to-day  than  this  recognition  of  the 
broader  scope  of  the  law  and  the  larger  field 
for  fundamental  activities  that  is  contained  in 
its  principles.  The  service  function  of  the  law 
and  "the  promotion  of  the  general  welfare" 
clause  of  the  constitution  are  the  lines  along 
which  the  progress  of  the  future  will  be  made ; 
as  war  and  crime  decrease,  as  police  activities 


CONSERVING   THE   PEOGEESS   OF   THE   PAST       217 

grow  less,  more  and  more  will  be  accomplished 
in  the  development  of  civic  usefulness  and  the 
accomplishment  of  greater  social  service  for 
the  people  by  their  governments.  This,  more 
than  any  other  one  thing,  is  to-day  the  great 
movement  in  law  and  tendency  of  government. 

Change  in  law's  ideals.  Law  is  the  peg 
which  when  once  driven  into  a  progress,  holds 
society  there  till  that  progress  may  be  made  an 
integral  part  of  its  civilization  and  from  which 
further  progress  may  be  made.  But  with  this 
progress  there  is,  at  the  present  time  rapidly 
coming  on  a  change  in  the  law's  ideals  and 
methods.  This  change  will  increase  greatly  the 
benefit  of  law  to  civilization.  The  ten  com- 
mandments are  a  bundle  of  negatives.  In  this, 
they  are  typical  of  all  old  law.  Old  laws  mainly 
enacted  punishments;  the  best  modern  crim- 
inologists, truly  representing  the  fundamental 
change  which  is  coming  over  the  law's  ideals 
and  methods,  are  substituting  reformation  for 
punishment,  they  are  abandoning  the  negative 
ideal,  and  have  taken  up  the  positive  ideal. 
This  change  has  taken  place  not  only  in  the  law 
as  applied  to  individuals,  but  as  to  society  and 
social  conditions,  until  our  legislative  halls  re- 
sound with  talk  about  the  effect  of  laws  on 
society. 

Silently    and   almost   unobserved    has    this 


218         LEGAL   DOCTRINE   AND   SOCIAL   PROGRESS 

change  crept  over  the  spirit  of  law.  Its  germ 
was  embedded  in  ancient  law,  but  the  develop- 
ment of  that  germ  is  modern  and  its  rapid  de- 
velopment has  taken  place  in  our  own  time.  It 
will  accomplish  itself  more  and  more  rapidly 
in  the  future.  Law,  from  being  negative,  pro- 
hibitive, individual,  primitive,  is  becoming  posi- 
tive, permissive,  social  and  creative.  It  is  ad- 
justing the  framework  of  society  more  and 
more  so  as  to  permit  liberty  of  individual  ac- 
tion and  yet  exerts  its  force  to  draw  up  indi- 
viduals to  lofty  ideals  of  common  and  social 
action.  This  is  a  view  of  the  law  that  needs  to 
be  more  generally  understood. 

Social  consciousness.  In  thus  holding  up 
social  ideals,  in  being  permissive  and  cre- 
ative, law  will  continue  to  develop  in  the  minds 
of  men  a  social  consciousness  that  each  is 
a  living  and  vital  part  of  the  social  whole, 
with  duties  as  well  as  rights.  The  relation  be- 
tween the  law  and  a  vital  social  consciousness 
is  that  of  action  and  reaction,  the  law  playing 
a  more  active  part  than  is  often  appreciated. 
"We  have  talked  much  of  late  about  a  new  social 
consciousness,  and  well  we  may,  but  there  is  an 
element  of  the  prophetic  in  our  talk.  There  is 
much  for  the  law  to  do  for  the  masses  in  the 
further  development  of  that  consciousness. 

Social  conscience.    Concurrent  with  the  mak- 


CONSERVING   THE   PROGRESS   OF   THE   PAST       219 

ing  of  a  great  social  consciousness,  but  differ- 
ent, is  the  development  of  social  conscience. 
No  force  is  greater  than  the  law  in  the  crea- 
tion in  men  of  that  social  conscience  which  will 
say  that  every  child,  no  matter  how  poorly  born, 
shall  have  the  fullest  opportunity  for  develop- 
ment that  is  possible ;  that  every  man  willing  to 
work,  shall  have  the  opportunity  for  healthful 
work  and  hopeful  rest;  that  every  locality  can 
develop  freely  and  fully;  that  present  right- 
eousness is  greater  than  precedent ;  that  human 
life  shall  take  precedence  over  property  rights. 
The  law  is  helping  to  create  the  conscience 
which  in  turn  will  make  the  new  law  express- 
ing itself.  This  view  of  the  law  is  above  and 
beyond  the  specific  schemes  and  formal  rules  of 
the  socialists  of  various  schools,  it  transcends 
the  narrow  comprehension  of  pur-blind  anti- 
socialists  and  so-called  individualists;  yet  it 
grasps  the  best  ideals  of  both  and  builds  upon 
the  good  foundations  of  the  past  and  present. 
The  law  is  here.  It  fits  human  life  on  the 
whole  fairly  well.  It  is  far  in  advance  of  many. 
It  is  a  great  uplifting  force  to  the  masses. 
And  law  is  to  hold  fast  that  which  we  have 
gained,  as  well  as  to  be  the  arena  in  which  the 
spheres  of  individual  and  communal  develop- 
ment are  slowly  and  painfully  to  be  molded  and 
remolded  and  given  definition. 


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